United States v. Rome Lee Harmon

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 3, 2020
• Docket: 19-12201
• Status: Unpublished

Opinion

Case: 19-12201 Date Filed: 09/03/2020 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12201 Non-Argument Calendar ________________________

D.C. Docket No. 8:04-cr-00154-RAL-MAP-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROME LEE HARMON,

Defendant-Appellant.

________________________

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

(September 3, 2020)

Before NEWSOM, BRANCH, and LAGOA, Circuit Judges.

PER CURIAM: Case: 19-12201 Date Filed: 09/03/2020 Page: 2 of 9

Rome Harmon, a federal prisoner, appeals the district court’s grant of his

motion for reduction of his sentence of life imprisonment, pursuant to the First

Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222. He argues

that the district court misapprehended its authority under the First Step Act to

reduce his sentence below the amended Guidelines range. Because it is ambiguous

whether the district court understood that it had the authority to sentence Harmon

below the low end of the Guidelines range, we remand for clarification.

I

In May 2004, a superseding indictment charged Harmon with conspiracy to

distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846 (Count

One), distribution of marijuana, in violation of 21 U.S.C. § 841(b)(1)(D) (Counts

Two, Three, Seven), distribution of cocaine base, in violation of 21 U.S.C.

§ 841(b)(1)(B) (Counts Four, Eight), possession with intent to distribute 50 grams

or more of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(A) (Count Nine),

and possession of firearms by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1) (Count Ten). The jury acquitted Harmon as to Count Four, but

convicted him on Counts One through Three, and Seven through Ten.

During his original sentencing, the presentence investigation report

determined that Harmon had a total offense level of 37 and, as a career offender, a

criminal history category of VI—yielding a Guidelines range of 360 months to life

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imprisonment. Because Counts One and Nine carried a mandatory term of life

imprisonment, however, Harmon’s actual Guidelines range was life imprisonment.

At sentencing, the district court adopted the PSI and determined, in relevant part,

that the Guidelines range was life imprisonment as to Counts One and Nine and

360 months to life imprisonment as to Count Eight. The court then sentenced

Harmon to life imprisonment as to Counts One, Eight, and Nine, and 120 months

as to Counts Two, Three, Seven, and Ten with all terms to run concurrently.

In 2019, after enactment of the First Step Act—which we’ll explain below—

Harmon moved for a reduction of his total sentence, arguing that he was eligible

for a sentence reduction under the First Step Act. In a memorandum, the probation

office advised that the First Step Act applied and “would make [Harmon] eligible

for a reduced, low end guideline sentence of 360 months imprisonment or time

served, whichever is greater.” The government conceded his eligibility and agreed

that a reduced sentence of the greater of 360 months imprisonment or time served

would be appropriate. It argued, however, that nothing in the record supported

reducing his sentence below 360 months imprisonment, the low end of the

Guidelines range.

In a one-page order, the district court granted Harmon’s motion for a

reduction of his sentence, citing only United States v. McKinney, 382 F. Supp. 3d

1163 (D. Kan. 2019). It reduced his sentence as to Counts One, Eight, and Nine to

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concurrent 360-month terms, followed by concurrent terms of eight years of

supervised release. His sentence as to Counts Two, Three, Seven, and Ten

remained unchanged.

Harmon now appeals, arguing that the district court misapprehended its

authority under the First Step Act to reduce a sentence below the amended

Guidelines range. Because we believe the record is ambiguous as to this point, we

remand for clarification, as we did in United States v. Jones, 962 F.3d 1290 (11th

Cir. 2020).

II

We review de novo whether a district court had the authority to modify a

term of imprisonment. Jones, 962 F.3d at 1296. We review the district court’s

denial of an eligible movant’s request for a reduced sentence under the First Step

Act for an abuse of discretion. Id. A district court abuses its discretion when it

“applies an incorrect legal standard.” Diveroli v. United States, 803 F.3d 1258,

1262 (11th Cir. 2015) (quotation marks omitted).

District courts lack the inherent authority to modify a term of imprisonment

but may do so to the extent that a statute expressly permits. 18 U.S.C.

§ 3582(c)(1)(B). The First Step Act expressly permits district courts to reduce a

previously imposed term of imprisonment. Jones, 962 F.3d at 1297.

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The Fair Sentencing Act, enacted on August 3, 2010, amended 21 U.S.C.

§§ 841(b)(1) and 960(b) to reduce the sentencing disparity between crack and

powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372

(“Fair Sentencing Act”); see Dorsey v. United States, 567 U.S. 260, 268-69 (2012)

(detailing the history that led to the enactment of the Fair Sentencing Act). Section

Two of the Fair Sentencing Act changed the quantity of crack cocaine necessary to

trigger a ten-year mandatory minimum from 50 grams to 280 grams and the

quantity necessary to trigger a five-year mandatory minimum from five 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 amendments were not made retroactive to

defendants who were sentenced before the enactment of the Fair Sentencing Act.

United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). The Fair Sentencing

Act did not expressly make any changes to § 841(b)(1)(C), which provides for a

term of imprisonment of not more than 20 years for cases involving quantities of

crack cocaine that do not fall within § 841(b)(1)(A) or (B). See Fair Sentencing

Act § 2(a); 21 U.S.C. § 841(b)(1)(C).

In 2018, Congress enacted the First Step Act, which made retroactive the

statutory penalties for covered offenses enacted under the Fair Sentencing Act. See

First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, § 404. Under § 404(b) of the

First Step Act, a court “that imposed a sentence for a covered offense may . . .

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

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. § 404(c).

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 Jones, 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 1298.

Next, we explained that a movant’s satisfaction of the “covered offense”

requirement does not necessarily mean that the district court is authorized to

reduce his sentence. Id. at 1303. Specifically, the “as if” qualifier in Section

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

authority. Id. (alteration in original) (quotation marks omitted); see First Step Act

§ 404(b). First, the district court cannot reduce a sentence where the movant

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received the lowest statutory penalty that would also be available to him under the

Fair Sentencing Act. Jones, 962 F.3d at 1303. “Second, in determining what a

movant’s statutory penalty would be under the Fair Sentencing Act, the district

court is bound by a previous finding of drug quantity that could have been used to

determine the movant’s statutory penalty at the time of sentencing.” Id.

Moreover, the Constitution does not prohibit district courts from relying on judge-

found facts that triggered statutory penalties prior to Apprendi v. New Jersey, 530

U.S. 466 (2000). See Jones, 962 F.3d at 1302.

Applying these limitations, we held that if a movant’s sentence necessarily

would have remained the same had the Fair Sentencing Act been in effect—in

other words, if his sentence was 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. at 1303.

Applying this “as-if” framework, we affirmed the denials of two of the

movants’ motions, but vacated and remanded as to the others because the district

courts had authority to reduce their sentences under the First Step Act, but it was

unclear whether the courts had recognized that authority. Id. at 1304–05. Most

relevant for Harmon, we held that it was error for the district courts to conclude

that a movant was ineligible based on a movant’s sentence being at the bottom of

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the Guidelines range. Because it was ambiguous whether the district courts denied

their 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 Section 404 of the First Step Act, it is not required to do

so. Id. at 1304. We held that a district court has wide latitude to determine

whether and how to exercise its discretion. Id.

III

Here, the district court correctly found that Harmon was convicted of a

covered offense and that it had authority to reduce his sentence. It is ambiguous,

however, whether the district court understood that it had the authority to sentence

Harmon below the low end of the Guidelines range. While the government is

correct that the district court did not indicate in its order that it lacked such

authority, it also did not indicate that it knew it had such authority. Moreover, the

probation office recommendation incorrectly stated that “[r]etroactive application

of the Fair Sentencing Act of 2010 would make the defendant eligible for a

reduced, low end Guidelines sentence of 360 months imprisonment or time served,

whichever is greater.” The government then agreed with that statement. Thus, it is

not clear from the record whether the district court understood that it had the

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authority to reduce Harmon’s sentence below 360 months. Accordingly, we vacate

and remand the district court’s order for clarification. 1

VACATED AND REMANDED.

1 As a final matter, the district court’s amended judgment cites the wrong penalty statutes for Harmon’s cocaine-base offenses under the First Step Act. For Counts One and Nine, the amended judgment cites to 21 U.S.C. § 841(b)(1)(A)(iii) instead of § 841(b)(1)(B)(iii). For Count Eight, the amended judgment cites § 841(b)(1)(B)(iii) instead of § 841(b)(1)(C). Accordingly, as part of our remand, we instruct the district to correct the typographical error in the amended judgment. See United States v. Brown, 772 F.3d 1262, 1268 (11th Cir. 2014) (remanding to correct a typographical error in judgment regarding statute of conviction).