United States v. Gonzalez

• Decision Date: 19 August 2021
• Docket Number: No. 19-14381,19-14381
• Citation: 9 F.4th 1327
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Antonio Soul GONZALEZ, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

9 F.4th 1327

UNITED STATES of America, Plaintiff - Appellee,

v.Antonio Soul GONZALEZ, Defendant - Appellant.

No. 19-14381

United States Court of Appeals, Eleventh Circuit.

August 19, 2021

Todd B. Grandy, Dawn A. Tiffin, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Marie-Louise Samuels Parmer, Parmer DeLiberato, PA, Tampa, FL, for Defendant-Appellant.

Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.

JORDAN, Circuit Judge:

Antonio Gonzalez appeals the denial of his motion for a sentence reduction pursuant to § 404(b) of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222. His case presents a question of first impression for us—whether a sentence imposed upon the revocation of supervised release qualifies for a reduction under § 404(b) of the First Step Act when the underlying crime is a covered offense under the Act. We now join the Fourth and Sixth Circuits in holding that it does. We also conclude, however, that the district court in this case did not abuse its discretion in denying Mr. Gonzalez's motion for a sentence reduction.

I

Pursuant to a plea agreement, Mr. Gonzalez pled guilty in 2005 to possessing 50 grams or more of cocaine base (i.e., crack cocaine) with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). The district court sentenced him to 240 months in prison and 120 months of supervised release.

In 2014, the district court reduced Mr. Gonzalez's term of imprisonment to 151 months pursuant to the government's substantial assistance motion. In 2015, the district court reduced Mr. Gonzalez's term of imprisonment to 76 months under 18 U.S.C. § 3582(c)(2).

Mr. Gonzalez began his term of supervised release in 2015. When he tested positive for cocaine and marijuana, provided false information to probation, and failed to obtain employment, his probation officer filed a petition for revocation of supervised release, and the district court issued a warrant for his arrest. The probation officer later filed a superseding petition adding new alleged criminal conduct: (1) possession of 500 grams or more of cocaine with intent to distribute; (2) possession of 28 grams or more of cocaine base; and (3) possession of a firearm in furtherance of a drug trafficking crime. Mr. Gonzalez admitted to nine violations, and the district court revoked his supervised release and sentenced him to 57 months in prison, to be served consecutively to a separate sentence imposed for the new criminal conduct.

In April of 2019, Mr. Gonzalez, proceeding pro se , sought to modify his 57-month sentence under § 404(b) of the First Step Act. He argued that his original narcotics conviction was now classified as a Class B felony instead of a Class A felony, and as a result his maximum prison term for a violation of supervised release was three years rather than five. The government opposed a reduction under the First Step Act. It argued that Mr. Gonzalez's current sentence was for revocation of supervised release under 18 U.S.C. § 3583(e)(3), and not for a covered offense under the First Step Act. It also alternatively asserted that, even if Mr. Gonzalez were eligible, the district court should not reduce his sentence because his new criminal conduct and his prison disciplinary record (which included 18 violations, some involving drugs) demonstrated "a continued disrespect for authority" and "raise[d] legitimate concerns about recidivism."

The district court denied Mr. Gonzalez's motion on alternative grounds. First, the district court concluded that Mr. Gonzalez was ineligible under the First Step Act because his current sentence was for a violation of supervised release, and not for a covered offense. Second, even if Mr. Gonzalez were eligible, the district court expressly adopted the government's alternative arguments. It explained that it would not reduce his sentence due to his "unwillingness or inability to abide by the law" and his "continued lawless behavior," including the recent drug and firearm offenses. Mr. Gonzalez's appeal followed.

II

Mr. Gonzalez argues that his current sentence, imposed upon revocation of supervised release, makes him eligible for a reduction under § 404(b) of the First Step Act. He asserts that the revocation of supervised release relates back to the initial offense for which he was imprisoned, and thus that initial offense should be the focus of the eligibility determination under the First Step Act. Because the Fair Sentencing Act of 2010, Pub. L. No. 111-20, §§ 2-3, 124 Stat. 2372, reclassified his initial narcotics offense from a Class A to a Class B felony, he contends that his supervised release revocation allows him to obtain a reduction under the First Step Act.

We exercise plenary review in determining whether a district court has authority to reduce a sentence under the First Step Act. See United States v. Russell , 994 F.3d 1230, 1236 (11th Cir. 2021) ; United States v. Jones , 962 F.3d 1290, 1296 (11th Cir. 2020). On appeal, the government has changed its position on the matter of eligibility. It now concedes that Mr. Gonzalez's revocation sentence is eligible for a reduction under the First Step Act because the underlying offense was a covered offense under § 404(b). We are "not bound to accept" a party's concession on a "question of law," but based upon our independent analysis we think the government's U-turn on eligibility is "well advised." Orloff v. Willoughby , 345 U.S. 83, 87, 73 S.Ct. 534, 97 L.Ed. 842 (1953).

For a defendant to be eligible for a sentence reduction under the First Step Act, "the district court must have imposed a sentence ... for a covered offense." Jones , 962 F.3d at 1298 (internal quotation marks omitted). The First Step Act defines a 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." First Step Act, § 404(a). See generally Terry v. United States , ––– U.S. ––––, 141 S. Ct. 1858, 1862–63, 210 L.Ed.2d 108 (2021) (explaining eligibility under the First Step Act). There is no dispute that Mr. Gonzalez's underlying narcotics crime, which involved the possession of crack cocaine, is a covered offense under the Act. The remaining question, then, is whether a sentence imposed upon the revocation of supervised release qualifies for a sentence reduction under § 404(b) of the Act when the underlying crime is a covered offense.

The Supreme Court has explained that "post[-]revocation penalties relate to the original offense." Johnson v. United States , 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). See also United States v. Haymond , ––– U.S. ––––, 139 S. Ct. 2369, 2379–80, 204 L.Ed.2d 897 (2019) (plurality opinion) ("an accused's final sentence includes any supervised release sentence he may receive"). We have similarly stated that as a "general principle ... post-revocation penalties are contemplated in relation to the original offense." United States v. Williams , 790 F.3d 1240, 1251 (11th Cir. 2015).¹

Because a "period of supervised release is simply a part of the sentence for the underlying conviction," id. , we join the Fourth and Sixth Circuits in holding that a sentence imposed upon revocation of supervised release is eligible for a sentence reduction under § 404(b) of the First Step Act when the underlying crime is a covered offense within the meaning of the Act. See United States v. Woods , 949 F.3d 934, 937 (6th Cir. 2020) ("Given that Woods’ current 37-month sentence relates to his original offense under 21 U.S.C. § 841(a)(1) —a First Step Act ‘covered offense’—Woods is eligible for resentencing[.]"); United States v. Venable , 943 F.3d 187, 194 (4th Cir. 2019) ("[G]iven that Venable's revocation sentence is part of the penalty for his initial offense, he is still serving his sentence for a ‘covered offense’ for purposes of the First Step Act. Thus, the district court had the authority to consider his motion for a sentence reduction just as if he were serving the original custodial sentence."). So Mr. Gonzalez is eligible for a sentence reduction under the First Step Act.

III

Eligibility, of course, is not the end of the matter. As its statutory text indicates, and as we have explained, § 404(b) of the First Step Act authorizes district courts to reduce the sentences of defendants with covered offenses but does not require them to do so. See United States v. Taylor , 982 F.3d 1295, 1298 (11th Cir. 2020) ; Jones , 962 F.3d at 1304. That means we review for abuse of discretion a district court's decision as to whether to reduce a sentence for an eligible defendant. See Jones , 962 F.3d at 1296. And that standard generally provides a district court with a "range of choice" as long as the choice does not constitute a "clear error of judgment." United States v. Irey , 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). See also Koon v. United States , 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ("A district court by definition abuses its discretion when it makes a mistake of law.").

A

A district court must adequately explain its decision under the First Step Act, and that usually requires providing a reasoned basis for the exercise of discretion. See United States v. Stevens , 997 F.3d 1307, 1317 (11th Cir. 2021). In exercising its discretion, a district court may consider the sentencing factors set forth in 18 U.S.C. § 3553(a), but it is not required to do so. See id. at 1316 ; United States v. Potts , 997 F.3d 1142, 1145–46 (11th Cir. 2021). And as long as it is not ambiguous, a district court's alternative exercise of discretion in denying a First Step Act motion can suffice for affirmance. See Potts , 997 F.3d at 1147. As explained below, we conclude that the district court here did not abuse its discretion in denying Mr. Gonzalez's First Step Act motion.

The district court...