United States v. Boulding

• Decision Date: 01 June 2020
• Docket Number: 1706,Nos. 19-1590,s. 19-1590
• Citation: 960 F.3d 774
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Walter G. BOULDING, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

960 F.3d 774

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant,

v.Walter G. BOULDING, Defendant-Appellant/Cross-Appellee.

Nos. 19-1590

1706

United States Court of Appeals, Sixth Circuit.

Argued: May 8, 2020

Decided and Filed: June 1, 2020

ARGUED: Anna R. Rapa, Mears, Michigan, for Appellant/Cross-Appellee. B. Rene Shekmer, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee/Cross-Appellant. ON BRIEF: Anna R. Rapa, Mears, Michigan, for Appellant/Cross-Appellee. B. Rene Shekmer, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee/Cross-Appellant.

Before: MERRITT, GUY, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

This First Step Act appeal raises two issues of first impression in the Sixth Circuit: (1) whether eligibility for resentencing under the Act turns on the statute of conviction as opposed to a defendant's specific conduct, and (2) whether the process a district court must afford an eligible defendant includes an opportunity to present objections. Because the Act's definition of a "covered offense" ties eligibility to the statute of conviction, we join all of our sister circuits that have reached the issue and hold that eligibility for resentencing under the First Step Act is a categorical inquiry governed by the statute of conviction. On resentencing process, we follow our recent cases holding that eligible defendants are not entitled to plenary resentencing, United States v. Alexander , 951 F.3d 706, 708 (6th Cir. 2019), but that a district court's discretion to deny resentencing under the Act is not unfettered, United States v. Foreman , 958 F.3d 506, 509–511 (6th Cir. 2020) ; United States v. Smith , No. 19-5281, 959 F.3d 701, 702–03 (6th Cir. May 15, 2020). Because an eligible defendant is entitled to an accurate amended guideline calculation and renewed consideration of the 18 U.S.C. § 3553(a) factors, a defendant seeking to raise objections must be afforded an opportunity to do so. We AFFIRM the district court's conclusion that Boulding is eligible for resentencing under the Act, VACATE the sentence imposed, and REMAND for resentencing.

I. BACKGROUND

A. Factual and Procedural History

In 2008, a jury convicted Walter Boulding of conspiracy to distribute, and to possess with intent to distribute, 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(iii) (Count I), and possession with intent to distribute 5 grams or more of cocaine base, in violation of §§ 841(a)(1) and 841(b)(1)(B)(iii) (Count II). On Count I, the jury found beyond a reasonable doubt that the conspiracy involved 50 grams or more of cocaine base ("crack cocaine"), the highest quantity it was asked to determine on the verdict form. It found that 5 grams or more was attributable to Boulding on Count II.

At sentencing, substantially more crack cocaine was found attributable to Boulding. The Final Presentence Report (PSR) found Boulding responsible for 650.4 grams of crack cocaine. The district court accepted this finding over Boulding's objection, resulting in a base offense level of 34. The probation officer then added three sentencing enhancements: a two-level increase for possession of a dangerous weapon, a four-level increase for Boulding's role as an organizer in the offense, and an additional two-level increase for obstruction of justice. Boulding's trial counsel objected to all three sentencing enhancements but did not seek a judicial determination because the statutory mandatory minimum controlled Boulding's sentence. The court nonetheless explained on the record that the three enhancements were justified. With a criminal history category of III and a total offense level of 42, Boulding's guideline range was 360 months to life, before consideration of the statutory mandatory minimum.

The statutory mandatory minimum of life in prison ultimately controlled Boulding's sentence. The Government filed a Section 851 Notice and the PSR identified Boulding's two prior felony drug convictions. While the statutory penalty range for Count I would have been 10 years to life with supervised release of 5 years to life, the then-operative version of § 841 dictated that a violation of § 841(a) involving 50 grams or more of crack cocaine required a mandatory life sentence if the violation occurred after two or more prior felony drug convictions. On Count II, the statutory range was 5 to 40 years’ incarceration with 4 years to life supervised release, which converted under the Section 851 Notice to 10 years to life. The statutory minimum also controlled Boulding's final guideline sentence pursuant to USSG § 5G1.2.

On April 27, 2009, the district court imposed a sentence of life imprisonment on Count I and 360 months’ imprisonment as to Count II. The court explained that it considered a life sentence too harsh a punishment for Boulding; "life in prison is not the sentence I would impose on Mr. Boulding if I had the full discretion that I normally have in sentencing."

United States v. Boulding , 379 F. Supp. 3d 646, 649 (W.D. Mich. 2019). We affirmed Boulding's life sentence. United States v. Boulding , 412 F. App'x 798 (6th Cir. 2011). Boulding pursued habeas remedies to no avail. See, e.g. , Boulding v. United States , No. 12-2320 (6th Cir. May 22, 2013); In re Boulding , No 18-2088 (6th Cir. Jan. 30, 2019).

In 2018, Boulding filed a motion for reduction of his sentence under the First Step Act. After appointment of counsel and briefing of several issues, the district court found Boulding eligible for resentencing under the Act and imposed a reduced sentence of 324 months’ imprisonment on both Counts I and II, to be served concurrently. But it denied Boulding's requests for a de novo resentencing hearing and for an opportunity to address previously frivolous objections to sentencing enhancements. Boulding now appeals, asserting he was due greater process. The Government cross-appeals, contending that Boulding was not eligible for resentencing under the Act.

B. Statutory Background

A year after Boulding was sentenced, Congress promulgated the Fair Sentencing Act of 2010, Pub L. No. 111-220, 124 Stat. 2372 (2010), which aimed to lessen the sentencing disparity between cocaine offenses and those involving crack cocaine. Id. at §§ 2-3; see also United States v. Blewett , 746 F.3d 647, 649 (6th Cir. 2013). The Fair Sentencing Act increased the threshold quantities of crack cocaine needed to trigger the mandatory statutory penalties in the Anti-Drug Abuse Act of 1986. Id. Relevant here, it increased the threshold quantity of crack cocaine in 21 U.S.C. § 841(b)(1)(A) from 50 grams or more to 280 grams or more. Similarly, it increased the threshold quantity of crack cocaine in 21 U.S.C. § 841(b)(1)(B) from 5 grams or more to 28 grams or more. Fair Sentencing Act at § 2(a)(2). The Fair Sentencing Act, however, was not retroactive. See Dorsey v. United States , 567 U.S. 260, 264, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012) ; Blewett , 746 F.3d at 649.

In 2018, Congress passed the First Step Act, which included making retroactive the Fair Sentencing Act's statutory changes for crack cocaine sentences. Specifically, Section 404 of the First Step Act made Sections 2 and 3 of the Fair Sentencing Act retroactive for defendants who were sentenced before August 3, 2010. The text of Section 404 is important to this appeal:

SEC. 404. APPLICATION OF FAIR SENTENCING ACT.

(a) DEFINITION OF COVERED OFFENSE.—In this section, the term "covered offense" means 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 ( Public Law 111–220 ; 124 Stat. 2372), that was committed before August 3, 2010.

(b) DEFENDANTS PREVIOUSLY SENTENCED.—A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) were in effect at the time the covered offense was committed.

(c) LIMITATIONS.—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.

First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194 (2018). The parties agree that the First Step Act makes defendants convicted of a covered offense before August 3, 2010, eligible for a reduced sentence. They also agree that the First Step Act does not require a reduced sentence; any reduction in the sentence is left to the district court's discretion. The threshold eligibility question on appeal turns on the meaning of "covered offense." § 404(a). What qualifies as adequate process in the First Step Act resentencing context is informed by § 404(b)-(c).

II. ANALYSIS

A. Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. See Smith , 959 F.3d at 701–02 ; United States v. Marshall , 954 F.3d 823, 829 (6th Cir. 2020). Questions of statutory interpretation are reviewed de novo. United States v. Miller , 734 F.3d 530, 539 (6th Cir. 2013). Boulding's legal eligibility for a sentence reduction is reviewed de novo. See United States v. Curry , 606 F.3d 323, 327 (6th Cir. 2010). Any statutory limitation on appellate review of resentencing decisions in the Rule 35 or 18 U.S.C. § 3782(c)(2) context does not apply to motions for resentencing brought pursuant the First Step Act. Foreman , 958 F.3d at 514–515. The district court's...