United States v. Maxwell

• Decision Date: 19 March 2021
• Docket Number: No. 20-5755,20-5755
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lazelle MAXWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

991 F.3d 685

UNITED STATES of America, Plaintiff-Appellee,

v.Lazelle MAXWELL, Defendant-Appellant.

No. 20-5755

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 19, 2021

ON BRIEF: Alison K. Guernsey, UNIVERSITY OF IOWA COLLEGE OF LAW, Iowa City, Iowa, for Appellant. Charles P. Wisdom, Jr., John Patrick Grant, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee. Henry A. Martin, Michael C. Holley, FEDERAL PUBLIC DEFENDER'S OFFICE, Nashville, Tennessee, Stephen Ross Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, PC, Knoxville, Tennessee, Elizabeth B. Ford, Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Amici Curiae.

Before: GUY, SUTTON, and GRIFFIN, Circuit Judges.

SUTTON, Circuit Judge.

Lazelle Maxwell moved for a discretionary sentence reduction under the First Step Act. The district court declined Maxwell's request, opting to leave his thirty-year sentence in place. Maxwell contends that the court abused its discretion. It did not, and we affirm.

I.

In 2008, a federal grand jury in Lexington, Kentucky indicted Lazelle Maxwell for conspiring to distribute crack cocaine and heroin. See 21 U.S.C. § 846. A jury found Maxwell guilty of both counts.

In sentencing Maxwell, the district court accurately determined that the crack-cocaine offense at the time generated a statutory range of 20 years to life and that the heroin offense generated a range of 10 years to life, 21 U.S.C. § 841(b)(1)(A)–(B). Under the 2009 edition of the guidelines, the district court treated Maxwell as a career offender and calculated a discretionary guidelines range of 30 years to life. U.S.S.G. § 4B1.1. It sentenced Maxwell to 30 years.

While Maxwell's direct appeal was pending, Congress enacted the Fair Sentencing Act of 2010. In an effort to increase parity between the sentences for crack and powder cocaine offenses, Congress increased the quantity of crack cocaine needed to trigger a ten-year mandatory minimum sentence from 50 grams to 280 grams. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372, 2372 (2010) (amending 21 U.S.C. § 841(b)(1)(A)(iii) ). But the change did not help Maxwell because it did not apply to sentences imposed before the Act. See United States v. Blewett , 746 F.3d 647, 650 (6th Cir. 2013) (en banc).

In appealing his conviction and sentence, Maxwell sought relief on the grounds that his pre-trial identification should have been suppressed, that the subsequent in-court identifications should not have been permitted, and that insufficient evidence linked him to the crime. Maxwell and his co-defendant also argued that their sentences were substantively unreasonable. Each claim fell short. United States v. Shields , 415 F. App'x 692, 704–05 (6th Cir. 2011).

Maxwell sought collateral relief on ineffective-assistance-of-counsel grounds. See 28 U.S.C. § 2255. Although the district court denied the motion, we ruled that his trial attorney violated Maxwell's Sixth Amendment right to counsel when he failed to argue that the two conspiracy counts were multiplicitous. Maxwell v. United States , 617 F. App'x 470, 472–73 (6th Cir. 2015).

On remand, the district court vacated Maxwell's heroin conviction and imposed a thirty-year sentence on the cocaine conviction alone, leaving his total sentence unchanged. We affirmed. United States v. Maxwell , 678 F. App'x 395, 397 (6th Cir. 2017).

In 2018, Congress enacted the First Step Act, which empowers district courts to lower sentences imposed for crack-cocaine offenses "as if" the 2010 Fair Sentencing Act (and its lowering of the sentence for this cocaine offense) had been the law during the original sentencing hearing. First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018). Maxwell mailed a one-page letter to the district court, asking about relief under the First Step Act. The district court construed the letter as a request for relief under the Act and denied it. United States v. Maxwell , No. CR 2:09-033-DCR, 2019 WL 1320045, at *4–5 (E.D. Ky. Mar. 22, 2019). We reversed the ruling on the ground that Maxwell sought appointment of counsel, not a merits review, at that point in the case. United States v. Maxwell , 800 F. App'x 373, 376 (6th Cir. 2020).

On remand, and with the assistance of counsel, Maxwell moved for a sentence reduction under the First Step Act. The district court denied his motion and left the thirty-year sentence in place. United States v. Maxwell , No. CR 2:09-033-DCR, 2020 WL 3472913, at *4 (E.D. Ky. June 25, 2020).

II.

The appeal raises two questions: Does the First Step Act demand a plenary resentencing of a defendant that accounts for all changes in the law since his original sentence? Even if that is not the case, does the Act permit a district court in its discretion to consider intervening legal developments, such as changes in the career-offender guidelines, in determining the extent of any sentence reduction?

A.

The text of the legislation goes a long way to answering the first question. The First Step Act says in pertinent part:

A court that imposed a sentence for a covered offense may, on motion of the defendant, ... 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.

First Step Act, § 404(b). A "covered offense" amounts to one affected by the former disparity between sentences imposed for crack and powder cocaine offenses—what the Act refers to as 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." Id. § 404(a). The upshot is that the Act gives a district court authority to reduce a defendant's sentence retroactively to account for the changes established by the Fair Sentencing Act. But that authority is discretionary. "Nothing" in the Act "shall be construed to require a court to reduce any sentence." Id. § 404(c).

With this legislation, Congress created an exception to the conventional rule that a court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). An exception to that rule says that a "court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute." Id. § 3582(c)(1)(B). Taken together, § 3582(c) and the First Step Act "expressly permitted" the district court to lower Maxwell's sentence in its discretion.

None of this seems to divide the United States and Maxwell. What separates them is a disagreement over what the district court must do before making that decision. As Maxwell sees it, the district court must engage in a plenary resentencing, one that recalculates the advisory guidelines range according to the law at the time of the request, here the law in 2020. In Maxwell's case, that new calculation would have accounted for subsequent changes in other areas of the law since his 2010 sentencing, including changes to his career-offender designation.

Efforts to rewrite the past are not easy. And we appreciate the appeal of Maxwell's argument that we should account for the present in redoing the past. But that is not what the First Step Act requires, at least not at the outset when determining the guidelines range that will form the basis for the reduced sentence. It tells the court to alter just one variable in the original sentence, not all variables. It asks the court to sentence Maxwell "as if" the crack-cocaine sentencing range had been reduced under the Fair Sentencing Act of 2010, not as if other changes had been made to sentencing law in the intervening years.

We have considerable company in following the relevant language—the Act's "as if" directive and § 3582(c) ’s prohibition on modifying sentences unless "expressly permitted"—to its natural end. Several circuits have rejected the idea that a First Step Act request requires the trial court to engage in a plenary resentencing hearing. From their vantage point, the district court looks to the law as it existed at the time the defendant committed the offense, save for one change: the Fair Sentencing Act's amendments. That's the reasoning of the Ninth Circuit: "Because the First Step Act asks the court to consider a counterfactual situation where only a single variable is altered, it does not authorize the district court to consider other legal changes that may have occurred after the defendant committed the offense." United States v. Kelley , 962 F.3d 470, 475 (9th Cir. 2020) (refusing to account for changes in career-offender precedents). And the reasoning of the Fifth Circuit: "Congress did not intend that other changes were to be made as if they too were in effect at the time of the offense." United States v. Hegwood , 934 F.3d 414, 418 (5th Cir. 2019). And the reasoning of the Eleventh Circuit: "[T]he district court ... is not free to ... reduce the defendant's sentence on the covered offense based on changes in the law beyond those mandated by sections 2 and 3 [of the Fair Sentencing Act]." United States v. Denson , 963 F.3d 1080, 1089 (11th Cir. 2020). And the reasoning of the Second Circuit: "We therefore hold that the First Step Act does not entail a plenary resentencing, and that it does not obligate a district court to recalculate an eligible defendant's Guidelines range, except for those changes that flow from Sections 2 and 3 of the Fair Sentencing Act of 2010, when considering as a discretionary matter whether (or by how much) to grant a sentence reduction." United States v. Moore , 975 F.3d 84, 92 (2d Cir. 2020). Under this approach, there is no requirement at the outset to account for intervening legal developments in recalculating the guidelines.

We take just one circuit, the Fourth Circuit, to require district courts to engage in a plenary resentencing under the First Step Act that must account for all changes in law since the original sentencing, not just the changes...