FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 14, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6014 (D.C. No. 5:07-CR-00056-C-1) CURTIS LEROY ROBERTSON, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * ________________________________
Before PHILLIPS, SEYMOUR, and CARSON, Circuit Judges. _________________________________
In this appeal, Defendant Curtis Leroy Robertson argues that the district court
erred by not recognizing its full discretion to reduce his sentence under the First Step
Act of 2018, Pub. L. 115-391, 132 Stat. 5194.
In June 2007, a jury convicted Robertson of four charges: (1) conspiracy to
manufacture and to possess with the intent to distribute 50 grams or more of cocaine base
(crack cocaine), in violation of 18 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A); (2) possession
with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A); (3) possession of a firearm in furtherance of a drug-trafficking
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1).
In September 2007, the district court sentenced Robertson to concurrent terms
of statutory life imprisonment on the 21 U.S.C. §§ 841 and 846 counts, 1 sixty
consecutive months on the 18 U.S.C. § 924(c) count, and 120 concurrent months on
the 18 U.S.C. § 922(g)(1) count. We affirmed the convictions. See United States v.
Robertson, 297 F. App’x 722 (10th Cir. 2008) (unpublished).
In October 2019, Robertson filed a motion for a sentence reduction under
Section 404 of the First Step Act (“Motion”). He argued that by making the Cocaine-
Sentencing-Disparity-Reduction provision of the Fair Sentencing Act of 2010
retroactive for covered offenses like his (crack-cocaine offenses for which the Fair
Sentencing Act had modified the statutory penalties), the First Step Act gave the
district court discretion to undo his mandatory life sentence and to reevaluate his
designation as a career offender under U.S.S.G. § 4B1.1. He also argued that the First
Step Act gave the district court discretion to lower his sentence after reconsidering
the 18 U.S.C. § 3553(a) factors.
In response to this Motion, the district court agreed that Robertson’s crack-
cocaine convictions were “covered offenses,” making him eligible for a reduced
sentence under the retroactively applied Fair Sentencing Act. But it exercised
discretion only to reduce Robertson’s previously imposed statutory mandatory life
1 Before trial, the government filed an Information under 21 U.S.C. § 851 identifying two “felony drug offenses.” 2 sentence. It considered itself lacking discretion to reevaluate Robertson’s status as a
career offender under U.S.S.G. § 4B1.1. Given that, the court reduced Robertson’s
sentence to a low-end guideline sentence of 360 months.
The First Step Act authorizes district courts 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.” But before Robertson’s First Step Act
sentencing in January 2020, our circuit had not decided whether this language
allowed district courts discretion to reevaluate a defendant’s earlier career-offender
designation under U.S.S.G. § 4B1.1. In particular, our circuit had not decided
whether a district court could reassess its earlier ruling that a defendant’s previous
felony convictions qualified as crimes of violence or controlled-substance offenses
under § 4B1.1. Nor had our circuit ruled on whether the First Step Act gives district
courts discretion to vary downward after reapplying the factors listed at 18 U.S.C.
§ 3553(a).
Left in this spot, the district court relied on cases from other circuits holding
that district courts had no discretion to review a defendant’s career-offender
designation. Appellant’s App. Vol. I at 78 (first citing United States v. Hegwood, 934
F.3d 414 (5th Cir.), cert. denied, 140 S. Ct. 285 (Mem.) (2019); and then citing
United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019)). The court did not comment
on whether it believed it had discretion to reapply the 18 U.S.C. § 3553(a) factors in
setting the sentence.
3 In September 2020, during the pendency of Robertson’s appeal, we decided
United States v. Brown, 974 F.3d 1137 (10th Cir. 2020), which held that the First
Step Act in fact gives district courts discretion to reconsider whether the defendant
would still be designated as a career offender in light of “subsequent decisional law
that clarifies (not amends) the related career offender provision at issue.” Id. at 1139–
40. In addition, Brown cited United States v. Mannie, 971 F.3d 1145, 1158 n.11 (10th
Cir. 2020) for the proposition that the First Step Act gives district courts discretion to
vary downward based on the 18 U.S.C. § 3553(a) factors in a First Step Act
proceeding. 974 F.3d at 1146 n.5.
Notably, the defendant in Brown had challenged his career-offender status by
attacking the same state-felony offense used as a predicate crime of violence to
qualify Robertson as a career offender, that is, Oklahoma’s pointing-a-firearm felony.
See id. at 1139, 1140; see also Okla. Stat. tit. 21, § 1289.16 (2017). As Brown
recognized, we have held that this Oklahoma felony no longer qualifies as a violent
felony under the Armed Career Criminal Act, 18 U.S.C.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 14, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6014 (D.C. No. 5:07-CR-00056-C-1) CURTIS LEROY ROBERTSON, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * ________________________________
Before PHILLIPS, SEYMOUR, and CARSON, Circuit Judges. _________________________________
In this appeal, Defendant Curtis Leroy Robertson argues that the district court
erred by not recognizing its full discretion to reduce his sentence under the First Step
Act of 2018, Pub. L. 115-391, 132 Stat. 5194.
In June 2007, a jury convicted Robertson of four charges: (1) conspiracy to
manufacture and to possess with the intent to distribute 50 grams or more of cocaine base
(crack cocaine), in violation of 18 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A); (2) possession
with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A); (3) possession of a firearm in furtherance of a drug-trafficking
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1).
In September 2007, the district court sentenced Robertson to concurrent terms
of statutory life imprisonment on the 21 U.S.C. §§ 841 and 846 counts, 1 sixty
consecutive months on the 18 U.S.C. § 924(c) count, and 120 concurrent months on
the 18 U.S.C. § 922(g)(1) count. We affirmed the convictions. See United States v.
Robertson, 297 F. App’x 722 (10th Cir. 2008) (unpublished).
In October 2019, Robertson filed a motion for a sentence reduction under
Section 404 of the First Step Act (“Motion”). He argued that by making the Cocaine-
Sentencing-Disparity-Reduction provision of the Fair Sentencing Act of 2010
retroactive for covered offenses like his (crack-cocaine offenses for which the Fair
Sentencing Act had modified the statutory penalties), the First Step Act gave the
district court discretion to undo his mandatory life sentence and to reevaluate his
designation as a career offender under U.S.S.G. § 4B1.1. He also argued that the First
Step Act gave the district court discretion to lower his sentence after reconsidering
the 18 U.S.C. § 3553(a) factors.
In response to this Motion, the district court agreed that Robertson’s crack-
cocaine convictions were “covered offenses,” making him eligible for a reduced
sentence under the retroactively applied Fair Sentencing Act. But it exercised
discretion only to reduce Robertson’s previously imposed statutory mandatory life
1 Before trial, the government filed an Information under 21 U.S.C. § 851 identifying two “felony drug offenses.” 2 sentence. It considered itself lacking discretion to reevaluate Robertson’s status as a
career offender under U.S.S.G. § 4B1.1. Given that, the court reduced Robertson’s
sentence to a low-end guideline sentence of 360 months.
The First Step Act authorizes district courts 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.” But before Robertson’s First Step Act
sentencing in January 2020, our circuit had not decided whether this language
allowed district courts discretion to reevaluate a defendant’s earlier career-offender
designation under U.S.S.G. § 4B1.1. In particular, our circuit had not decided
whether a district court could reassess its earlier ruling that a defendant’s previous
felony convictions qualified as crimes of violence or controlled-substance offenses
under § 4B1.1. Nor had our circuit ruled on whether the First Step Act gives district
courts discretion to vary downward after reapplying the factors listed at 18 U.S.C.
§ 3553(a).
Left in this spot, the district court relied on cases from other circuits holding
that district courts had no discretion to review a defendant’s career-offender
designation. Appellant’s App. Vol. I at 78 (first citing United States v. Hegwood, 934
F.3d 414 (5th Cir.), cert. denied, 140 S. Ct. 285 (Mem.) (2019); and then citing
United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019)). The court did not comment
on whether it believed it had discretion to reapply the 18 U.S.C. § 3553(a) factors in
setting the sentence.
3 In September 2020, during the pendency of Robertson’s appeal, we decided
United States v. Brown, 974 F.3d 1137 (10th Cir. 2020), which held that the First
Step Act in fact gives district courts discretion to reconsider whether the defendant
would still be designated as a career offender in light of “subsequent decisional law
that clarifies (not amends) the related career offender provision at issue.” Id. at 1139–
40. In addition, Brown cited United States v. Mannie, 971 F.3d 1145, 1158 n.11 (10th
Cir. 2020) for the proposition that the First Step Act gives district courts discretion to
vary downward based on the 18 U.S.C. § 3553(a) factors in a First Step Act
proceeding. 974 F.3d at 1146 n.5.
Notably, the defendant in Brown had challenged his career-offender status by
attacking the same state-felony offense used as a predicate crime of violence to
qualify Robertson as a career offender, that is, Oklahoma’s pointing-a-firearm felony.
See id. at 1139, 1140; see also Okla. Stat. tit. 21, § 1289.16 (2017). As Brown
recognized, we have held that this Oklahoma felony no longer qualifies as a violent
felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e). See Brown, 974
F.3d at 1139, 1141 (citing United States v. Titties, 852 F.3d 1257, 1266, 1272, (10th
Cir. 2017)). This being so, we remanded in Brown for the district court to exercise its
discretion to choose whether to reconsider Brown’s career-offender status, as well as
the appropriateness of his sentence after considering the 18 U.S.C. § 3553(a) factors.
Id. at 1145–46, 1146 n.5.
4 Because he is in the same legal position as Brown, Robertson deserves the
same relief. Accordingly, we reverse and remand for further proceedings in
accordance with this order.
Entered for the Court
Gregory A. Phillips Circuit Judge