United States v. Moyhernandez

Decision Date15 July 2021
Docket NumberAugust Term 2020,No. 20-625,20-625
Citation5 F.4th 195
Parties UNITED STATES of America, Appellee, v. Jose MOYHERNANDEZ, aka Yindo, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Kedar Bhatia (Anna M. Skotko, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America.

Darrell Fields, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant Jose Moyhernandez.

Before: Jacobs, Pooler, Park, Circuit Judges.

Dennis Jacobs, Circuit Judge:

Jose Moyhernandez appeals from an order of the United States District Court for the Southern District of New York (Preska, J. ) denying a motion for reduced sentence under § 404 of the First Step Act.

Moyhernandez was convicted in 2000 on charges including conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of cocaine base. Based on Moyhernandez's status as a career offender, the district court (Mukasey, J. ) sentenced Moyhernandez to 360 months’ imprisonment--the bottom of his Guidelines range--plus a ten-year term of supervised release.

In 2019, Moyhernandez moved for a sentence reduction pursuant to § 404 of the First Step Act, which empowers district courts to apply retroactively the reduced penalties for crack-cocaine offenses set out in the Fair Sentencing Act of 2010. Judge Preska concluded that Moyhernandez was eligible for a reduced sentence but exercised her discretion to withhold a reduction. The district court reasoned that Moyhernandez remained a career offender and had a lengthy criminal history. As to the term of supervised release, the district court added that Moyhernandez will be deported on release from custody.

In reaching its decision, the district court stated that it was not required to consider the 18 U.S.C. § 3553(a) factors. We agree, and conclude that consideration of the § 3553(a) factors is not required on review of a motion brought pursuant to § 404 of the First Step Act--though it is certainly permitted. We further conclude that the district court did not abuse its discretion in declining to reduce Moyhernandez's sentence and properly understood both Moyhernandez's eligibility for a sentence reduction and its own authority to grant one. Accordingly, we affirm.

BACKGROUND
A. Conviction and Sentencing

In 1996, Jose Moyhernandez sold (to a confidential informant) about 90 grams of crack cocaine and a semi-automatic pistol. In 2000, a jury convicted Moyhernandez of (1) conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of cocaine base, in violation of 21 U.S.C. § 846 ; and (2) possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). At the time, because Moyhernandez had a prior drug-felony conviction, the crack-cocaine conviction carried a mandatory minimum prison sentence of 20 years.1 See 21 U.S.C. §§ 846, 841(b)(1)(A)(iii) (2000), amended by Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 ; see also United States v. Johnson, 961 F.3d 181, 184 (2d Cir. 2020) (explaining the sentencing scheme in place at the time).

Under the U.S. Sentencing Guidelines, Moyhernandez was a "career offender." That is, (1) he was at least eighteen years old when he committed the crack-cocaine offense; (2) the offense was a controlled-substance felony; and (3) he had at least two prior convictions for controlled-substance felonies. U.S. Sent'g Guidelines Manual § 4B1.1(a) (U.S. Sent'g Comm'n 1998). Two previous convictions in Massachusetts were for felonies involving cocaine. Additional previous convictions in New York and Massachusetts included controlled-substance offenses.

Because Moyhernandez was a career offender, his Guidelines range was 360 months to life. At the 2000 sentencing, Judge Mukasey conceded that 30 years’ imprisonment was harsh. However, the Guidelines were then mandatory. See United States v. Booker, 543 U.S. 220, 233–34, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Notwithstanding his reluctance, Judge Mukasey identified "indicia of substantial involvement way beyond simply being a street dealer," as well as Moyhernandez's admission to "moving substantial quantities." App. at 39–40. Moyhernandez was sentenced to 120 months on the firearm count, to run concurrently with the 360-month sentence, and ten years of supervised release. On appeal, the conviction and sentence were affirmed. See United States v. Moyhernandez, 17 F. App'x 62, 65–66, 72 (2d Cir. 2001) (summary order). Moyhernandez, who was 35 years old at sentencing in 2000, is now 56. Because he is a citizen of the Dominican Republic and is without immigration status in the United States, he will be removed upon his release.

B. The Fair Sentencing Act and the First Step Act

The Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372, enacted in 2010, "altered the threshold drug quantities that trigger the varying penalty ranges for crack cocaine offenses." United States v. Holloway, 956 F.3d 660, 662 (2d Cir. 2020). Section 2 of that Act increased, from 50 grams to 280 grams, the quantity of crack cocaine necessary to trigger the 20-year mandatory minimum imposed on prior drug offenders. § 2(a)(1), 124 Stat. at 2372; see 21 U.S.C. § 841(b)(1)(A)(iii). Moyhernandez's 90 grams falls below the new threshold.

While district courts generally cannot modify prison sentences, they "may modify an imposed term of imprisonment to the extent ... expressly permitted by statute." 18 U.S.C. § 3582(c)(1)(B). The First Step Act, enacted in 2018, confers that statutory authority.2 Pub. L. No. 115-391, 132 Stat. 5194 ; Holloway, 956 F.3d at 666. Section 404(b) of the First Step Act makes the Fair Sentencing Act retroactive: "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 of 2010 were in effect at the time the covered offense was committed." First Step Act § 404(b), 132 Stat. at 5222 (citation omitted). A "covered offense" is "a violation of a [f]ederal 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) (citation omitted).

The First Step Act, in § 404(c), precludes review of a motion to reduce a sentence if the sentence already conforms with the Fair Sentencing Act, or if a reduction under the First Step Act was previously denied. Id. § 404(c). Otherwise, if a defendant is eligible for a sentence reduction--that is, if he was sentenced for a "covered offense," Holloway, 956 F.3d at 664 --then a district court may, in its discretion, reduce the sentence, United States v. Moore, 975 F.3d 84, 87 (2d Cir. 2020).

C. First Step Act Motion and Appeal

In August 2019, by which time the case had been reassigned to Judge Preska, Moyhernandez moved for a reduced sentence pursuant to the First Step Act. His letter brief argued that he was eligible because he was sentenced for a "covered offense," and that the district court should exercise its discretion to reduce his sentence to time served. In particular, Moyhernandez argued that 18 U.S.C. § 3553(a), which sets forth "factors to be considered in imposing a sentence," militated in favor of a sentence reduction:

Judge Mukasey made clear at the time of sentencing nearly two decades ago that if the guidelines were not mandatory, he would have exercised his discretion under § 3553(a) to impose a sentence lower than 30 years. The First Step Act now gives that discretion to Your Honor. ... No statutory purpose would be served by additional incarceration.

App. at 26; see § 3553(a). The § 3553(a) factors are set out in the margin.3

Judge Preska denied the motion. See United States v. Moyhernandez, No. 97-CR-197, 2020 WL 728780, at *2 (S.D.N.Y. Feb. 13, 2020). The district court first determined that Moyhernandez was eligible for a sentence reduction because he was sentenced for a "covered offense," and the § 404(c) limitations were inapplicable. Id. at *1. Then the court exercised its discretion to decline to reduce the sentence. The court reasoned that Moyhernandez "had a lengthy criminal record" and that the First Step Act "did not change the applicability of the career-offender designation." Id. at *2. Since Moyhernandez's Guidelines range remained unchanged, and he was "sentenced ... to the minimum of this range in 2000," the court declined to "adjust that sentence now." Id. The court also declined to reduce Moyhernandez's term of supervised release, reasoning that Moyhernandez "is to be deported upon release from custody." Id.

In reaching its decision, the court ruled that "there is no mandate to consider [the] § 3553(a) factors when reducing a sentence under [the First Step Act]." Id.

After Moyhernandez filed his notice of appeal, the district court issued Form "AO 247," headed "Order Regarding Motion for Sentence Reduction Pursuant to First Step Act and 18 U.S.C. § 3582(c)(2)."4 App. at 64. This check-mark form included boilerplate language indicating that the court had considered, inter alia, "the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable." Id.

On appeal, Moyhernandez argues primarily that the district court was required to consider the § 3553(a) factors in deciding whether to grant a sentence reduction pursuant to the First Step Act and failed to do so (Point I below), and that the district court abused its discretion in declining to reduce his 360-month prison sentence and ten-year term of supervised release (Point II). Moyhernandez quibbles with the analysis the district court used to conclude that he was eligible for a sentence reduction, and claims that Form AO 247 reflects the court's misapprehension as to its authority under the First Step Act (Point III).

STANDARD OF REVIEW

The denial of a motion for a sentence reduction under the First...

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