United States v. Holloway

• Decision Date: 24 April 2020
• Docket Number: No. 19-1035-cr,August Term, 2019,19-1035-cr
• Citation: 956 F.3d 660
• Parties: UNITED STATES of America, Appellee, v. Jason HOLLOWAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

956 F.3d 660

UNITED STATES of America, Appellee,

v.Jason HOLLOWAY, Defendant-Appellant.

No. 19-1035-cr

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: February 26, 2020

Decided: April 24, 2020

Marybeth Covert, Federal Public Defender's Office, Western District of New York, Buffalo, NY, for Defendant-Appellant.

Tiffany H. Lee, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

Before: Parker, Livingston, and Nardini, Circuit Judges.

William J. Nardini, Circuit Judge:

Defendant-Appellant Jason Holloway appeals from the denial of his February 1, 2019, motion to reduce his sentence pursuant to Section 404 of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), in the United States District Court for the Western District of New York (Siragusa, J. ). Holloway moved for a reduction of both his 168-month term of imprisonment and his ten-year term of supervised release. In considering Holloway's motion, the district court applied the framework of 18 U.S.C. § 3582(c)(2), including § 1B1.10 of the U.S. Sentencing Guidelines. Because Holloway had been sentenced as a career offender, the district court concluded that his Guidelines range after application of the First Step Act was equivalent to his original Guidelines range. Accordingly, the district court held that Holloway was ineligible for a reduction of his term of imprisonment. The district court did not address Holloway's motion for a reduction of his term of supervised release. During the pendency of this appeal, Holloway completed his prison term and was released from the custody of the Federal Bureau of Prisons.

We hold that Holloway's appeal was not mooted by his release from prison. Holloway remains eligible for a reduction in his term of supervised release. On the merits, we hold that Holloway was eligible for relief under the plain language of the First Step Act: The district court had previously sentenced him for a covered offense under the Act, and Holloway was not otherwise barred from relief under the Act's own limitations. We further hold that 18 U.S.C. § 3582(c)(1)(B), rather than § 3582(c)(2), provides the correct framework for consideration of a motion for a reduction of a term of imprisonment under the First Step Act; therefore, U.S.S.G. § 1B1.10 does not prevent a district court from considering a First Step Act motion made by a defendant whose new Sentencing Guidelines range is equivalent to his original range. Accordingly, we VACATE the order denying Holloway's motion and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

A. Holloway's Initial Conviction and Sentencing

On September 24, 2008, Holloway was charged in a three-count indictment. As relevant to this appeal, he pled guilty on January 9, 2009, to Count One, which charged him with possessing "with the intent to distribute fifty (50) grams of more of a mixture and substance containing a detectable amount of cocaine base," in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). In his plea agreement, Holloway conceded that he possessed more than 50 but less than 150 grams of cocaine base, and that the government had seized 66.33 grams of cocaine base from him in February 2008. Holloway also conceded two prior convictions, which the government and Holloway agreed rendered him a career offender under U.S.S.G. § 4B1.1. Additionally, the government filed an information pursuant to 21 U.S.C. § 851 establishing a prior felony drug conviction. The parties accordingly agreed to a Guidelines range of 262–327 months of imprisonment and ten years of supervised release. Finally, the agreement contained terms of cooperation, by which the government would seek a departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).

The Probation Office then prepared a Presentence Investigation Report (PSR) agreeing with the parties' Guidelines calculations, and the government ultimately moved for a four-level downward departure per the terms of cooperation, leading to a recommended sentencing range of 168–210 months of imprisonment. The sentencing took place on June 22, 2010. The district court accepted the PSR calculations, granted the government's motion for a departure, and sentenced Holloway to 168 months in prison followed by ten years of supervised release.

B. The Fair Sentencing Act and First Step Act

The Fair Sentencing Act, enacted in August 2010, altered the threshold drug quantities that trigger the varying penalty ranges for crack cocaine offenses located in 21 U.S.C. § 841(b)(1). See Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372. As relevant to Holloway, the Fair Sentencing Act increased the threshold quantity for conviction under § 841(b)(1)(A) from 50 to 280 grams of crack cocaine. Id. The Fair Sentencing Act applied prospectively, as well as to offenses committed before the Act's enactment if the defendant had not yet been sentenced. But it did not apply retroactively to defendants, like Holloway, who had been sentenced before the Act became effective. See Dorsey v. United States , 567 U.S. 260, 281, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).¹

In December 2018, Congress enacted the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194. Section 404(b) of the Act provides:

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 were in effect at the time the covered offense was committed.

Id. § 404(b), 132 Stat. at 5222 (citation omitted). Section 404(a), meanwhile, defines the term "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 that was committed before August 3, 2010.

Id. § 404(a), 132 Stat. at 5222 (citation omitted). The Act limits its application only by preventing courts from hearing motions if (1) the sentence in question "was previously imposed or previously reduced" in accordance with the relevant provisions of the Fair Sentencing Act, or (2) if a previous motion was made under the First Step Act and denied "after a complete review of the motion on the merits." Id. § 404(c), 132 Stat. at 5222. Finally, Section 404 states that "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section." Id.

C. Holloway's Motion for First Step Act Relief

After the First Step Act was enacted, Holloway moved for a sentence reduction pursuant to Section 404 on February 1, 2019. The Probation Office produced a supplemental PSR, in which it concluded that Holloway was not eligible for a reduction of his term of imprisonment. The Probation Office interpreted Holloway's motion as one made under 18 U.S.C. § 3582(c)(2), meaning that any reduction would need to be consistent with policy statements of the Sentencing Commission. This included U.S.S.G. § 1B1.10(a)(2), which precludes reductions if the relevant amendment to the Sentencing Guidelines would "not have the effect of lowering the defendant's applicable guideline range." Concluding that Holloway's revised Guidelines range was equivalent to his original range, the PSR opined that Holloway was not eligible for a reduction of his term of imprisonment under the First Step Act.² The PSR did, however, note that Holloway's mandatory minimum period of supervised release had been reduced statutorily to eight years rather than ten.³ The government subsequently agreed with the PSR's conclusion that Holloway was not eligible for any relief from his term of imprisonment because his Guidelines range was unchanged. The government also agreed that Holloway's statutory minimum supervised release term had been reduced and that he was thus eligible for a reduction on that front.

The district court, in a one-page order issued on April 8, 2019, agreed with the Probation Office and the government that Holloway was ineligible for a reduction of his prison term, finding that, under U.S.S.G. § 1B1.10(a)(2)(B), "the amendment does not have the effect of lowering [Holloway's] applicable guideline range[ and a]s such, the defendant is not eligible for a sentence reduction." Joint App'x at 111. The order did not address Holloway's supervised release term. Holloway filed a timely appeal from the order on April 15, 2019. On October 4, 2019, while this appeal was pending, Holloway was released from prison. He remains on supervised release.

II. DISCUSSION

On appeal, Holloway argues that the district court erred in considering his motion under 18 U.S.C. § 3582(c)(2) and thus applying U.S.S.G. § 1B1.10 to conclude he was not eligible for a reduction in his term of imprisonment. He also faults the district court for failing to address his supervised release term. We agree, and hold that Holloway was eligible for — though not necessarily entitled to — relief under the First Step Act.

We note at the outset that Holloway's appeal is not entirely moot. It is true that Holloway has already been released from prison, so it is too late to reduce his prison sentence. With respect to his request for a lower prison term, his appeal is therefore now moot. But the district court could still reduce his term of supervised release. On remand, if the district court does so, it may factor in how much (if at all) it would have reduced Holloway's prison term. See United States v. Barresi , 361 F.3d 666, 675 (2d Cir. 2004) ; see also United States v. Blackburn , 461 F.3d 259, 262 & n.2 (2d Cir. 2006) (holding that challenge to sentence after release from prison was moot only where record made clear that "the possibility of the district court's imposing a reduced term of supervised release on remand is so remote and speculative" that merits decision would amount to advisory...