Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 17, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-7050
JOSHUA PRICE, JR.,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:98-CR-00010-RAW-1) _________________________________
Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Northern District of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant.
Linda A. Epperley, Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee. _________________________________
Before TYMKOVICH, Chief Judge, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________
TYMKOVICH, Chief Judge. _________________________________
Joshua Price Jr. appeals the district court’s dismissal of his motion for a
sentence reduction pursuant to the First Step Act of 2018. Under the First Step
Act, a district court may reduce a prisoner’s sentence if the prisoner was Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 2
convicted of an offense covered by the Fair Sentencing Act, a 2010 law that
changed the sentencing provisions for certain drug offenses. The parties agree
that Mr. Price is eligible for a sentence modification because he was convicted of
a covered offense: distribution of cocaine base under 21 U.S.C. § 841. But the
parties disagree about whether Mr. Price has standing to request a First Step Act
sentence modification.
In 1998, the sentencing court determined Mr. Price’s sentence length by
applying a cross reference for first-degree murder under the then-mandatory
United States Sentencing Guidelines. The resulting life sentence exceeded the
Sentencing Guideline calculation for his cocaine and firearms offenses. This
cross reference used the Guideline calculations from a non-covered offense,
murder, but the enhancement derives from Mr. Price’s covered conviction for
drug distribution. Our precedent says that if the length of a prisoner’s sentence is
determined by a concurrent non-covered offense, and that sentence exceeds the
length of the covered offense, then the prisoner does not have constitutional
standing for a sentence modification. The question presented is whether the
district court may now modify Mr. Price’s sentence in light of the First Step Act.
We conclude that the district court has discretion to reduce Mr. Price’s
overall sentence. Mr. Price was convicted of violating a covered offense and was
sentenced to life by a Guideline cross-reference to a non-covered offense. But
Mr. Price was not convicted of murder; that crime only increased his sentence for
the cocaine offenses. Since Mr. Price’s sentence was entirely driven by the drug
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offenses, he is eligible for a sentence modification. And nothing prevents the
district court from reviewing the murder cross reference in considering his
sentence under the now-advisory Sentencing Guidelines. Since no statutory
mandatory minimum applies for the murder cross reference, during sentence
modification the court is entitled to apply the traditional sentencing factors under
18 U.S.C. § 3553(a).
In sum, because a sentence reduction is possible, we find that Mr. Price has
standing for a sentence modification under the First Step Act. We therefore
reverse the district court and remand for further proceedings.
I. Background
In the summer of 1997, a law enforcement task force investigated cocaine
trafficking in the Muskogee, Oklahoma area. The task force worked with an
informant, Ebon Sekou Lurks, to gather information about Mr. Price, an alleged
drug dealer. Mr. Price learned that Lurks was an informant and one week later
Lurks was murdered. Law enforcement suspected that Mr. Price was involved in
the murder, and when they searched Mr. Price’s residence they found Mr. Price, a
gun belonging to Mr. Price, and Mr. Price’s bloodstained tennis shoes. DNA
testing indicated there was a high probability that the blood on Mr. Price’s tennis
shoes belonged to Lurks.
In 1998, Mr. Price was charged with 21 counts of drug and firearm-related
crimes. But he was not charged with Lurks’s murder. Before trial, the district
court decided to admit recorded statements that Lurks made to law enforcement 3 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 4
because Mr. Price was “directly involved in the execution of . . . Lurks” as shown
by “[c]lear and convincing evidence.” Thus, the district court held that “the
statements made by Lurks should be admitted into evidence as [Mr. Price has]
waived [his] confrontation rights by causing the unavailability of Lurks.” At
trial, a jury convicted Mr. Price of all counts.
After trial, the government prepared a presentence report (PSR), which
grouped Mr. Price’s convictions into two categories: the drug offenses and the
firearm offenses. The PSR calculated an adjusted offense level of 42 for the drug
offenses and 22 for the firearm offenses.
The PSR also included a cross reference to first-degree murder because
evidence showed that Mr. Price killed Lurks. 1 The cross reference to first-degree
murder came from U.S.S.G. § 2D1.1, which advises:
If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder) or § 2A1.2 (Second Degree Murder), as appropriate, if the resulting offense level is greater than that determined under this guideline.
Id. § 2D1.1 (d)(1). Under § 2A1.1, the Guideline commentary recommended a
sentence of life imprisonment for murder unless the government moved for a
1 A cross reference is similar to a sentencing enhancement. It is an instruction to apply another offense guideline if the district court finds the necessary facts by a preponderance of the evidence. See U.S.S.G. § 1B1.5 (explaining cross references); United States v. Robertson, 946 F.3d 1168, 1171 (10th Cir. 2020) (discussing burden of proof for sentencing enhancements). 4 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 5
downward departure based on the defendant’s substantial assistance. See id. cmt.
n.2(A). Since Mr. Price had not assisted the government, the PSR calculated an
adjusted offense level of 46 for the murder cross-reference and recommended a
sentence of life in prison.
The district court found by a preponderance of the evidence that Mr. Price
murdered Lurks. See 18 U.S.C. § 1111 (defining murder as “unlawful killing of a
human being with malice aforethought”). Thus, the court applied the cross
reference for first-degree murder as recommended by the PSR. See U.S.S.G. §
2A1.1. Using the 1998 Sentencing Guidelines Manual, the district court
sentenced Mr. Price to
life for his conviction on one count of conspiracy to distribute cocaine;
life for each of his six convictions for distributing cocaine (including the murder cross-reference);
48 months for each of his twelve convictions for the use of a communication facility in committing a felony; and
120 months for each of his two convictions for firearms possession.
All sentences run concurrently. At the time of Mr. Price’s sentencing, the
Guidelines were mandatory and the district court had no discretion to vary below
a life sentence for the murder cross reference.
On direct appeal in 2001, we found that Mr. Price’s life sentences for the
drug charges under 21 U.S.C. § 841(b)(1)(A) were plainly erroneous because the
5 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 6
drug quantity had not been submitted to the jury. See United States v. Price, 265
F.3d 1097, 1108 (10th Cir. 2001). We concluded that Mr. Price “should have
been sentenced under § 841(b)(1)(C), which provides for a maximum sentence of
twenty years for each of [his] seven narcotics convictions.” Id. But we also held
that Mr. Price did not require relief because the district court would be required
to run the drug conviction sentences consecutively, which had the practical effect
of a life sentence. Id. at 1109.
Mr. Price filed a motion to modify his sentence in 2011 under 18 U.S.C.
§ 3582(c)(2), based on Sentencing Guideline Amendment 750. The Amendment
lowered the Sentencing Guidelines range for offenses involving certain levels of
cocaine base. Mr. Price was correct—if Amendment 750 were in place at the
time he was sentenced his base offense level for the drug offenses would have
been four points lower. But we found Mr. Price was not eligible for a sentence
reduction because his sentence length was based on the cross reference for first-
degree murder instead of the drug quantity. See United States v. Price, 486 F.
App’x 727, 732 (10th Cir. 2012) (unpublished).
In 2019, two decades after Mr. Price’s initial convictions, he moved for a
sentence reduction under the First Step Act. He argues that his sentence can be
reduced because the new statutory framework requires no minimum quantity of
cocaine base. Though true, the district court found that Mr. Price’s Sentencing
Guideline range does not change because his life sentence is driven by the first-
degree murder cross-reference. The court concluded that Mr. Price’s motion
6 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 7
would not actually reduce his length of incarceration, and thus ruled that Mr.
Price lacked standing for a sentence reduction.
II. Analysis
Mr. Price contends he is eligible for, and has standing to request, a
sentence reduction under the First Step Act. Because the Sentencing Guidelines
are now advisory, he argues that the district court has the legal authority to vary
from the Guideline range—even for the cross reference to first-degree murder—
by relying on any applicable sentencing factors in 18 U.S.C. § 3553(a). Mr. Price
thus claims that the district court could modify his life sentences to shorter terms,
resulting in a shorter sentence.
We review the grant or denial of a First Step Act motion for abuse of
discretion. See United States v. Mannie, 971 F.3d 1145, 1155 (10th Cir. 2020).
But if, as here, the issue presented is a jurisdictional question then we review de
novo. United States v. Baker, 769 F.3d 1196, 1198 (10th Cir. 2014).
A. Statutory Eligibility
Congress passed the Fair Sentencing Act of 2010 to reduce the disparity in
treatment of cocaine base and powder cocaine offenses. Congress made the Fair
Sentencing Act apply retroactively for these offenses when it passed the First
Step Act in 2018. 2 “An offender is eligible for a sentence reduction under the
2 Section 404 of the First Step Act authorized district courts to impose reduced sentences for defendants convicted of a “covered offense,” which the Act defined as “a violation of a Federal criminal statute, the statutory penalties for which
7 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 8
First Step Act only if he previously received ‘a sentence for a covered offense.’”
Terry v. United States, 141 S. Ct. 1858, 1862 (2021). The key to eligibility for a
sentence reduction under the First Step Act is the offense of conviction, as
opposed to the “underlying conduct.” United States v. Broadway, 1 F.4th 1206,
1208 (10th Cir. 2021).
An offender with an eligible conviction has standing to challenge a
sentence under the First Step Act “[a]s long as it is possible for the court to grant
some actual [sentence] reduction.” Mannie, 971 F.3d at 1153 n.9. But “if
reducing an offender’s sentence under the 2018 [First Step Act] does not have the
effect of actually reducing the offender’s length of incarceration, then the court
cannot redress the offender’s injury under the [Act]. If the court cannot redress
the offender’s injury, then the offender does not have standing, a live controversy
is not present, and the court does not have jurisdiction.” Id. at 1153; see also
United States v. Ellis, 859 F. App’x 276, 279 (10th Cir. 2021) (same); United
States v. Carrillo, 2021 WL 5764843, *1 (10th Cir. Dec. 6, 2021) (unpublished)
(“If it becomes impossible at any point for a court to grant effective relief, then
the injury is no longer redressable, and the court loses jurisdiction over the
claim.”).
were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . , that was committed before August 3, 2010.” First Step Act of 2018, Publ. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). 8 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 9
In Mannie, we found that a defendant with a conviction eligible for a
sentence reduction under the First Step Act nonetheless did not have standing for
his request. See Mannie, 971 F.3d at 1153; see also Ellis 2021 WL 2224357, at
*2. The defendant had concurrent sentences where one offense was eligible for a
reduction but the other was not. See Mannie, 971 F.3d at 1153. Because a
reduction on only the eligible conviction would not actually reduce the length of
the defendant’s incarceration, we found that he did not have standing. Id.
In the present case, both parties agree that Mr. Price is statutorily eligible
for retroactive application of the Fair Sentencing Act. Mr. Price was originally
sentenced under 21 U.S.C. § 841(b)(1)(A), which only applies where the
defendant is charged with a specific drug quantity. But the Fair Sentencing Act
requires that Mr. Price be sentenced under § 841(b)(1)(C) with a maximum
sentence of twenty years because his superseding indictment contained no drug
quantity. See Price, 265 F.3d at 1108 (finding that Mr. Price’s life sentences
pursuant to § 841(b)(1)(A) were plain error and holding that “Defendant should
have been sentenced under § 841(b)(1)(C), which provides for a maximum
sentence of twenty years for each of Defendant’s seven narcotics convictions”).
Although we have statutory jurisdiction to entertain Mr. Price’s First Step
Act motion, the issue in this case concerns constitutional standing. See Mannie,
971 F.3d at 1152. Mr. Price alleges an injury of ongoing incarceration, thus he
only has constitutional standing if the sentencing court has the power to actually
reduce his sentence. Id. at 1153.
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B. Sentencing Guidelines
Mr. Price can only obtain a reduced sentence if the Sentencing Guidelines
do not require a mandatory life sentence for his murder cross-reference. At the
time of Mr. Price’s sentencing in 1998 the Guidelines were mandatory, and the
sentencing court did not have discretion to impose a sentence shorter than life. In
2005, the Supreme Court declared the Guidelines to be “effectively advisory,” but
applied this change only to cases finalized after January 12, 2005. United States
v. Booker, 543 U.S. 220, 245 (2005). The question is whether the now-advisory
Sentencing Guidelines mandate a life sentence for Mr. Price during First Step Act
sentence modification proceedings.
Turning first to the text of the applicable sentence-modification statute, 18
U.S.C. § 3582, three sub-sections are relevant to answer this question: (c)(1)(A)
(e.g., compassionate release), (c)(2) (e.g., retroactive Guideline amendments),
and (c)(1)(B) (e.g., the First Step Act). 3
3 The full text of 18 U.S.C. § 3582(c) reads:
(c) Modification of an Imposed Term of Imprisonment. — The court may not modify a term of imprisonment once it has been imposed except that — (1) in any case — (A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is
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Sections 3582(c)(1)(A), and (c)(2) explicitly require that a sentence
reduction be “consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A), (c)(2). But sentence
modifications under the First Step Act operate through 18 U.S.C.
earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that— (i) extraordinary and compelling reasons warrant such a reduction; or (ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and (B) the 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; and (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c) (emphasis added). 11 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 12
§ 3582(c)(1)(B), which does not have the same requirement. See United States v.
Brown, 974 F.3d 1137, 1144 (10th Cir. 2020) (concluding that “the First Step Act
operates through § 3582(c)(1)(B)”). Thus, no policy statements from the
Sentencing Commission limit a district court’s discretion when considering a
sentence reduction under the First Step Act.
The Supreme Court’s recent opinion in Concepcion v. United States
supports this conclusion. See 142 S. Ct. 2389, 2398 (2022). In Concepcion, the
Court held that a district court’s sentencing discretion is restricted “only when
Congress or the Constitution expressly limits the type of information a district
court may consider in modifying a sentence.” Id. Importantly, the Court held
that this discretion applies to both initial sentencings and sentence modification
hearings. Id. at 2393 (“The discretion federal judges hold at initial sentencings
also characterizes sentencing modification hearings.”).
As an example of congressional limitations on a district court’s sentencing
discretion, the Court noted that 18 U.S.C. § 3582(c)(2) only allows reductions
that are consistent with applicable Guideline policy statements. Id. at 2401. But
as we said previously, § 3582(c)(1)(B) does not incorporate policy statement
guidance. Thus, district courts are not limited by the Sentencing Guidelines for
sentence modifications under the First Step Act and § 3582(c)(1)(B) because
Congress has not expressly limited the district court’s discretion in these cases.
See id. (“Nothing in the text and structure of the First Step Act expressly, or even
implicitly, overcomes the established tradition of district courts’ sentencing
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discretion.”). In other words, a district court may vary below the Guidelines
during a First Step Act sentencing hearing at its discretion. Id. at 2402 n.6.
(holding that district courts considering a First Step Act sentence modification
may “consider postsentencing conduct or nonretroactive changes in selecting or
rejecting an appropriate sentence, with the properly calculated Guidelines range
as the benchmark”).
In sum, we conclude the district court has discretion to reduce Mr. Price’s
sentence under the First Step Act. Mr. Price was not separately charged and
convicted of murder—instead, the murder enhancement is wholly subsumed
within the covered drug offenses.
In response, the government contends that U.S.S.G. § 1B1.10 is a relevant
policy statement that forecloses a sentence reduction for Mr. Price. Section
1B1.10 provides that “the court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) to a term that is less than the
minimum of the amended Guideline range.” But § 1B1.10 applies only to
sentence modifications under 18 U.S.C. § 3582(c)(2), not subsection (c)(1), and
thus does not limit a district court’s discretion during a First Step Act sentence
reduction.
The government also contends that all cases finalized before Booker must
treat the Guidelines as mandatory. See Booker, 543 U.S. at 245 (declaring the
Guidelines “effectively advisory”). The government cites a variety of Supreme
Court and Tenth Circuit cases for this argument. But these cases rely on different
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statutes, not on § 3582(c)(1)(B). And, moreover, the Supreme Court’s decision in
Concepcion effectively forecloses this argument because a district court’s
sentencing discretion is restricted “only when Congress or the Constitution
expressly limits the type of information a district court may consider in
modifying a sentence.” 142 S. Ct. at 2398.
Resisting this analysis, the government relies on Dillon v. United States,
560 U.S. 817 (2010), where the Court held that a defendant resentenced under 18
U.S.C. § 3582(c)(2) must be sentenced within the Guideline range because of the
limitation of U.S.S.G. § 1B1.10. 4 The Court reasoned that reducing a sentence
under § 3582(c)(2) is not a resentencing procedure and thus the Sentencing
Commission’s policy statement can be mandatory because it is not governed by
Booker. See id. at 825–26, 828. But, in the present case, Mr. Price is asking for
a sentence reduction under a different subsection of the statute, § 3582(c)(1)(B).
Mr. Price is thus not subject to the limitations of U.S.S.G. § 1B1.10—as we have
said, Congress has imposed no special limitations on the district court’s
discretion in First Step Act cases. See Concepcion, 142 S. Ct. at 2396; see also
United States v. Collington, 995 F.3d 347, 355 (4th Cir. 2021) (finding that in
First Step Act cases “we ask courts to make substantially more robust
4 In doing so, the Court addressed a defendant’s Sixth Amendment rights to have a jury find facts that enhance his sentence and held that the defendant’s Sixth Amendment rights were not violated when the district court considered a reduction only within the amended Guidelines range. Id. at 828–29. In the Court’s words: “Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Id. at 826. 14 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 15
resentencing decisions than in § 3582(c)(2) proceedings” which may result in a
new sentence “and therefore rest between an initial or plenary sentencing hearing
and a limited modification”). 5
Similarly, the government cites United States v. Hald, 8 F.4th 932 (10th
Cir. 2021), where the defendant was seeking a sentence modification pursuant to
18 U.S.C. § 3582(c)(1), the compassionate release statute. In Hald, we held that
compassionate release sentence modifications “do not implicate the interests
identified in Booker.” Id. at 944. 6 But that case invoked different statutory
requirements than a First Step Act sentence modification: compassionate release
requires consistency with the policy statements, but sentence modifications under
the First Step Act do not.
5 The government cites multiple other cases that address sentence modifications under 18 U.S.C. § 3582(c)(2). See, e.g., United States v. Rhodes, 549 F.3d 833, 835, 839–40 (10th Cir. 2008); United States v. Doublin, 572 F.3d 235, 237–38 (5th Cir. 2009) (citing cases). These cases are not relevant to Mr. Price’s situation because Mr. Price seeks a sentence modification under 18 U.S.C. § 3582(c)(1)(B), not (c)(2). 6 This case addresses the order in which a district court must resolve the compassionate release requirements. See Hald, 8 F.4th at 946. 18 U.S.C. § 3582(c)(1)(B)—the section applicable to Mr. Price’s appeal—requires that the court “first address whether the defendant’s guideline range has been changed by a postsentencing amendment.” Id. But § 3582(c)(1)(A)—the section relevant to the Hald defendants—allows the court to consider compassionate release factors in any order. Hald’s holding regarding order of requirements is not relevant to the retroactivity of the mandatory Sentencing Guidelines. And in Hald we also reiterated that the policy statement, § 1B1.13, is inapplicable to § 3582(c)(1)(A) motions filed directly by defendants. Hald, 8 F.4th at 949 (citing United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021)). 15 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 16
Finally, the government relies on United States v. Bellamy, 411 F.3d 1182
(10th Cir. 2005), where we concluded that “Booker does not apply retroactively
to initial habeas petitions.” Id. at 1186. More specifically, we found that
“Booker does not apply retroactively on collateral review, and [defendant’s]
claim may not be brought in this initial habeas review under 28 U.S.C.
§ 2255.” Id. at 1188. 7 Bellamy misses the mark because Mr. Price is not
requesting collateral review. Mr. Price is seeking a sentence modification under
the Fair Sentencing Act and First Step Act—two congressional attempts to
resolve the sentencing discrepancy between crack and powder cocaine that are
independent of habeas proceedings. 8 Mr. Price is eligible for a sentencing
reduction under these two statutes.
In short, the government cites cases that address different statutes—or
different sub-sections of the same statute—and are at odds with the clear
language of 18 U.S.C. § 3582(c)(1)(B), which does not limit a district court’s
discretion during a First Step Act sentence modification. See Concepcion, 142 S.
Ct. at 2402 (“Nothing in the text and structure of the First Step Act expressly, or
7 Bellamy’s introduction says that “Booker does not apply retroactively to criminal cases that became final before its effective date of January 12, 2005.” Bellamy, 411 F.3d at 1184. But this statement is limited to collateral review, for the reasons discussed in the opinion. Id. at 1188. 8 Habeas cases are of an entirely different nature, involving the issue of whether a sentence was imposed in violation of the Constitution or laws of the United States. See 28 U.S.C. § 2255(a). 16 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 17
even implicitly, overcomes the established tradition of district courts’ sentencing
discretion.”).
Accordingly, we find that the district court is not bound by the pre-Booker
mandatory Guidelines in a First Step Act sentence modification. Id.
C. Constitutional Standing
Based on these principles, the district court was not required to impose a
life sentence for Mr. Price’s murder cross-reference because the Sentencing
Guidelines are not mandatory. In other words, the district court has discretion to
vary below the Guideline range for first-degree murder and sentence Mr. Price to
less than life. Mr. Price has a redressable injury and thus has constitutional
standing. See Mannie, 971 F.3d at 1153 (“If the court cannot redress the
offender’s injury, then the offender does not have standing, a live controversy is
not present, and the court does not have jurisdiction.”).
The government counters that Mr. Price’s murder cross-reference is
functionally equivalent to a concurrent sentence and he is thus ineligible for a
sentence modification under the First Step Act. It points to Mannie, where we
held that when “an offender has been sentenced concurrently, the court can only
redress the ongoing incarceration to the extent that some portion of the
incarceration is solely dependent on the sentence of the crack cocaine offense that
might be reduced under the [First Step Act].” See id. But Mr. Price’s argument
aligns with this holding because his incarceration is “solely dependent” on
sentences for cocaine offenses. Id. And Mr. Price’s sentences “might be
17 Appellate Case: 21-7050 Document: 010110725778 Date Filed: 08/17/2022 Page: 18
reduced” because they do not run concurrently to an undischarged sentence of the
same length, as was the situation in Mannie. Id. Mr. Price’s sentences “might be
reduced” because they were imposed under mandatory Sentencing Guidelines that
are now advisory and can now be reconsidered in light of any applicable factors
contained in 18 U.S.C. § 3553(a). In cases where we ruled that a movant did not
have standing for a First Step Act claim, the movant had multiple concurrent
sentences of the same length with one count eligible for sentence reduction and
another count ineligible. See id. at 1152; Ellis, 859 F. App’x at 280. This case is
not comparable to that situation.
Finally, the government also relies on Ellis, 859 F. App’x at 279. In Ellis,
the defendant’s cocaine convictions were eligible for a First Step Act reduction,
but his methamphetamine conviction was not eligible. Id. Thus, the district court
lacked the authority to actually reduce the defendant’s period of incarceration.
Id. Mr. Price’s case is different because his sentence length is determined by a
conviction that is eligible for a sentence reduction under the First Step Act,
unlike a concurrent sentence for a separate, ineligible offense.
In summary, Mr. Price is eligible for a sentence reduction under the First
Step Act and has standing to bring this argument because the district court may
actually reduce his sentence. Accordingly, the district court must consider Mr.
Price’s motion for a sentence modification under the First Step Act.
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III. Conclusion
For the foregoing reasons, we REVERSE the district court and REMAND
the case for reconsideration consistent with this opinion.