United States v. Foreman

• Decision Date: 07 May 2020
• Docket Number: No. 19-1827,19-1827
• Citation: 958 F.3d 506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Preston FOREMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

958 F.3d 506

UNITED STATES of America, Plaintiff-Appellee,

v.Benjamin Preston FOREMAN, Defendant-Appellant.

No. 19-1827

United States Court of Appeals, Sixth Circuit.

Argued: March 11, 2020

Decided and Filed: May 7, 2020

ARGUED: Elizabeth A. LaCosse, FEDERAL PUBLIC DEFENDER, Marquette, Michigan, for Appellant. Nils R. Kessler, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Elizabeth A. LaCosse, FEDERAL PUBLIC DEFENDER, Marquette, Michigan, for Appellant. Nils R. Kessler, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: GIBBONS, McKEAGUE, and WHITE Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge.

Benjamin Foreman appeals the district court’s order granting his motion for a sentence reduction pursuant to the First Step Act of 2018 ("First Step Act"). He raises two arguments on appeal. First, he argues that the First Step Act requires district courts to conduct a plenary resentencing of any defendant deemed eligible for relief under the law. Specifically, Foreman contends that the district court erred by refusing to grant his requests for an in-person hearing and reconsideration of his career offender status. Second, Foreman argues that his reduced sentence is unreasonable. He maintains that, because he should no longer be classified as a career offender, the district court unreasonably varied upward from his true Guidelines range. Foreman also contends that the district court erred when it allegedly failed to recognize that he was eligible for a reduced term of supervised release.

As we have previously concluded, nothing in the First Step Act entitles a defendant to a plenary resentencing. Moreover, we hold that the district court properly imposed Foreman’s reduced sentence. In doing so, we find that we have authority under 18 U.S.C. § 3742(a)(1) to review Foreman’s claim that the district court’s sentencing determination was unreasonable. Although our precedents indicate that reasonableness review does not apply to certain sentence-reduction proceedings, we find that the First Step Act is distinguishable and decline to extend those precedents to First Step Act proceedings. We nevertheless hold that Foreman’s reduced sentence was reasonable. We therefore affirm.

I.

In 2006, Benjamin Foreman pled guilty to (1) possession with intent to distribute fifty or more grams of cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii) ; (2) possession with intent to distribute cocaine powder, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) ; and (3) possession of a firearm during and in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). During his plea colloquy, Foreman admitted that he was responsible for approximately 135 grams of crack cocaine and 250 grams of cocaine powder. Similarly, the Presentence Investigation Report ("PSR") found that Foreman was responsible for 135 grams of crack cocaine and 250 grams of cocaine powder.

Under the 2006 edition of the United States Sentencing Guidelines ("Guidelines"), these drug quantities resulted in an initial base offense level of 32 for the two cocaine offenses. After adjusting downward by three points for acceptance of responsibility, Foreman’s initial total offense level was 29, along with a criminal history category of IV. Foreman, however, was determined to be a career offender under § 4B1.1 of the Guidelines. In turn, because the statutory maximum sentence for Foreman’s conviction under § 841(b)(1)(A)(iii) was life imprisonment, his total offense level became 34 and his criminal history category VI. Foreman’s resulting drug offense range was 262 to 327 months.

After adding in the mandatory-minimum 60 months’ imprisonment required by § 924(c) for the firearms conviction, Foreman had a final Guidelines range of 322 to 387 months. At his sentencing, the district court varied downward from the applicable Guidelines range and imposed a total sentence of 300 months’ imprisonment. The sentence consisted of 240 months’ imprisonment with respect to each of the drug convictions, to run concurrently with each other, and 60 months’ imprisonment with respect to the single firearms conviction, to run consecutively to the drug-offense sentences. Foreman was also sentenced to the statutory-minimum five years of supervised release.

Approximately four years after the district court sentenced Foreman, Congress enacted the Fair Sentencing Act of 2010 ("Fair Sentencing Act"). Pub. L. No. 111-220, 124 Stat. 2372. The Fair Sentencing Act reduced the penalties for specific cocaine-related offenses punishable under 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) by increasing the amount of crack cocaine required to trigger those provisions’ penalties. See Fair Sentencing Act §§ 2–3. As relevant here, section 2 of the Fair Sentencing Act increased from fifty grams to 280 grams the quantity of crack cocaine required to trigger the mandatory ten-years-to-life term of imprisonment under § 841(b)(1)(A). A defendant convicted for an offense involving less than 280 grams of crack cocaine, in turn, would now be subject to the less severe five-to-forty-year prison term under § 841(b)(1)(B). Thus, had Foreman been sentenced after the Fair Sentencing Act was enacted, he would have been subject to the five-to-forty-year range under § 841(b)(1)(B).

The provisions of the Fair Sentencing Act, however, were not made retroactive by Congress, so Foreman’s sentence remained the same. That changed in 2018 when Congress enacted the First Step Act. Pub L. No. 115-391, 132 Stat. 5194. Under section 404(b) of the First Step Act, a defendant who committed a "covered offense" may move his sentencing court 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." A "covered offense," in turn, is defined 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 ... [and] that was committed before August 3, 2010." First Step Act § 404(a). Nothing in section 404, however, "require[s] a court to reduce" the sentence of an eligible defendant. Id. § 404(c). The effect of the First Step Act, then, is to allow—but not require—district courts to retroactively apply the Fair Sentencing Act to eligible defendants.

On March 8, 2018, Foreman moved the district court for a sentence reduction pursuant to the First Step Act. The parties agreed that Foreman was eligible for such a reduction but disagreed as to the process the district court was required to follow when determining whether and to what extent it would reduce his sentence. Foreman argued that the First Step Act required the district court to engage in a plenary resentencing, including an in-person hearing, de novo application of current law, and reconsideration of his career offender status. The government, by contrast, argued that the district court lacked authority to engage in a plenary resentencing.

In a written decision, the district court granted Foreman’s motion in part. In doing so, it held that Foreman was not entitled to a plenary resentencing under the First Step Act and declined to revisit his career offender status or hold an in-person hearing. The district court then weighed several factors, including the new statutory range applicable to Foreman’s drug offenses, his recalculated Guidelines range under both the 2006 and 2018 editions of the publication, and the factors outlined in 18 U.S.C. § 3553(a). With those considerations in mind, the court exercised its discretion to reduce Foreman’s total sentence to 232 months—172 months on each of the drug offenses, to run concurrently, and the mandatory consecutive 60 months on the firearms offense. It left unchanged all other terms of the original sentence, including Foreman’s five years of supervised release. Foreman timely appealed.

II.

Foreman raises two arguments on appeal. First, he contends that the First Step Act required the district court to conduct a plenary resentencing, including an in-person hearing, de novo application of current law, and reconsideration of his career offender status. Second, and based primarily on his first argument, Foreman contends that the district court abused its discretion and imposed a reduced sentence that is substantively and procedurally unreasonable. He argues that the district court erroneously retained his career offender status when calculating his new Guidelines range and thus unreasonably varied upward from his true range. He also claims that the district court failed to recognize that application of the First Step Act lowered his mandatory-minimum term of supervised release by one year. We address each issue in turn.

A.

Foreman first argues that, once the district court determined he was eligible for a reduced sentence, the First Step Act required it to conduct a plenary resentencing. Specifically, he contends that the district court should have held an in-person hearing to determine the extent of his sentence reduction—if any—based on de novo application of current law and reconsideration of his career offender status. The government responds that, although Foreman was eligible for a sentence reduction, nothing in the First Step Act required the district court to conduct a plenary resentencing.

Under section 404(b) of the First Step Act, a defendant who committed a "covered offense" may move to have a district court "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." A district court, however, is not "require[d] ... to reduce any sentence" pursuant to section 404(b). First Step Act § 404(c); see also id. § 404(b) (instructing that a court "may ... impose a reduced sentence" (emphasis added)). Instead, the choice of whether to grant such relief to an otherwise eligible defendant is...