United States v. Thomas Randolph Glover

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 6, 2020
• Docket: 19-11742
• Status: Unpublished

Opinion

Case: 19-11742 Date Filed: 08/06/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11742 Non-Argument Calendar ________________________

D.C. Docket No. 9:95-cr-08021-JAL-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS RANDOLF GLOVER,

Defendant-Appellant.

________________________

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

(August 6, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and ED CARNES, Circuit Judges.

PER CURIAM: Case: 19-11742 Date Filed: 08/06/2020 Page: 2 of 6

Thomas Glover, a federal prisoner serving a total 360-month sentence for

conspiracy to distribute crack cocaine, possession with intent to distribute crack

cocaine, and distribution of crack cocaine, appeals the district court’s denial of his

motion for a sentence reduction under the First Step Act of 2018, Pub. L. No. 115-

391, 132 Stat. 5194, § 404. Glover argues that the district court erred by

concluding that it lacked authority to grant him relief under that Act. Glover also

requests that we remand his case to a different judge. We agree that the district

court erred, but we see no reason to remand his case to a different judge.

I.

In 1995, Glover was charged in a four-count superseding indictment with:

(1) conspiracy to distribute a “detectable amount” of crack cocaine, in violation of

21 U.S.C. § 846; (2) possession with intent to distribute a “detectable amount” of

crack cocaine, in violation of § 841(a)(1); (3) distribution of a “detectable amount”

of crack cocaine, in violation of § 841(a)(1); and (4) manufacture of a “detectable

amount” of crack cocaine, in violation of § 841(a)(1). Before trial, the government

filed a notice of intent to rely on Glover’s prior felony drug conviction to seek

higher statutory penalties. See 21 U.S.C. § 851(a). A jury found Glover guilty of

counts one, two, and three, and not guilty of count four. The jury did not

determine the amount of crack cocaine involved in each offense.

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At sentencing, the district court found that Glover was responsible for 87.98

grams of crack cocaine. Each of his three convictions carried a statutory range of

20 years to life imprisonment because of that drug quantity and Glover’s prior

felony drug conviction. See 21 U.S.C. § 841(b)(1)(A)(iii) (1994). As a career

offender under the Guidelines, Glover’s guideline range was 360 months to life

imprisonment based on a total offense level of 37 and a criminal history category

of VI. The district court sentenced him to 360 months in prison on each count, to

be served concurrently.

In March 2019, Glover moved in the district court for a sentence reduction

pursuant to the First Step Act. The district court ultimately denied that motion,

finding that “reduction of [Glover’s] sentence is not authorized under” the First

Step Act because, even with retroactive application of that Act, Glover’s guideline

range would remain the same.

II.

We review “the denial of an eligible movant’s request for a reduced sentence

under the First Step Act” for an abuse of discretion. United States v. Jones, 962

F.3d 1290, 1296 (11th Cir. 2020).

The Fair Sentencing Act, enacted in 2010, amended 21 U.S.C. §§ 841(b)(1)

and 960(b) to reduce the existing 100-to-1 sentencing disparity between crack and

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

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2372; see also Jones, 962 F.3d at 1297. The Act increased the amount of crack

cocaine that triggers the statutory penalties under § 841(b). The amount of crack

cocaine that triggers the statutory penalty under § 841(b)(1)(B) was increased from

5 to 28 grams, and the amount of crack cocaine that triggers the statutory penalties

under § 841(b)(1)(A) was increased from 50 to 280 grams. Fair Sentencing Act of

2010, Pub. L. No. 111-220, 124 Stat. 2372, § 2(a); 21 U.S.C. § 841(b)(1)(A)–(B).

These amendments reduced the disparity to 18-to-1. Jones, 962 F.3d at 1297.

In 2018, Congress enacted the First Step Act, which makes the statutory

penalties enacted under the Fair Sentencing Act retroactive for covered offenses.

First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, § 404. Section 404 of

the First Step Act “granted district courts discretion to reduce the sentences of

crack-cocaine offenders in accordance with the amended penalties in the Fair

Sentencing Act.” Jones, 962 F.3d at 1297. It “permits a district ‘court that

imposed a sentence for a covered offense’ to ‘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. (quoting First Step Act § 404(b)).

Since the district court ruled in this case, we have held that a First Step Act

movant has a covered offense within the meaning of § 404(b) “if his offense

triggered a statutory penalty that has since been modified by the Fair Sentencing

Act.” Id. at 1298.

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To determine the offense for which the district court imposed a sentence, district courts must consult the record, including the movant’s charging document, the jury verdict or guilty plea, the sentencing record, and the final judgment. From these sources, the district court must determine whether the movant’s offense triggered the higher penalties in section 841(b)(1)(A)(iii) or (B)(iii). If so, the movant committed a covered offense.

Id. at 1300–01.

The district court sentenced Glover for the offenses of conspiracy to

distribute 50 grams or more of crack cocaine, possession with intent to distribute

50 grams or more of crack cocaine, and distribution of 50 grams or more of crack

cocaine. Glover’s indictment charged him with those offenses, and although the

jury did not make a drug-quantity finding, the district court found at sentencing a

drug quantity of 87.98 grams of crack cocaine. The statutory penalty for each of

Glover’s offenses at the time of sentencing was 20 years to life imprisonment

based on his drug quantity and prior felony drug conviction. See 21 U.S.C.

§ 841(b)(1)(A)(iii) (1994). The Fair Sentencing Act modified the penalties for his

offenses to be 10 years to life imprisonment. See id. § 841(b)(1)(B)(iii) (2012).

Glover has covered offenses under the First Step Act, and the district court erred in

concluding that the First Step Act did not authorize it to reduce his sentence.

Of course, just because the First Step Act authorizes the district court to

reduce Glover’s sentences, that does not mean it requires the district court to do so.

See Jones, 962 F.3d at 1304. “District courts have wide latitude to determine

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whether and how to exercise their discretion in this context. In exercising their

discretion, they may consider all the relevant factors, including the statutory

sentencing factors, 18 U.S.C. § 3553(a).” Id. And “a district court, of course,

could consider its previous findings of relevant conduct in deciding whether to

exercise its discretion to reduce an eligible movant’s sentence under section 404(b)

of the First Step Act.” Id. at 1301.

We therefore VACATE the district court’s denial of Glover’s motion and

REMAND for it to determine whether to exercise its discretion to reduce his

sentence.1

1 We also deny Glover’s request to remand this case to a different judge. Glover provides no good reason for reassigning his case, which “is an extraordinary order.” United States v. Gupta, 572 F.3d 878, 891 (11th Cir. 2009). 6