United States v. Palmer

Decision Date03 June 2022
Docket Number20-3058,C/w 20-3060
Citation35 F.4th 841
Parties UNITED STATES of America, Appellee v. Michael PALMER, also known as Tony, also known as Knot, also known as James, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

Jonathan Zucker, appointed by the court, argued the cause and filed the briefs for appellant.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Chrisellen R. Kolb, Nicholas P. Coleman, and Timothy R. Cahill, Assistant U.S. Attorneys. Mark Hobel, Assistant U.S. Attorneys.

Before: Henderson and Jackson* , Circuit Judges, and Ginsburg, Senior Circuit Judge.

Karen LeCraft Henderson, Circuit Judge:

In this consolidated appeal, Michael Palmer mounts two challenges to a life sentence for running a continuing criminal enterprise (CCE) centered around crack cocaine distribution. See 21 U.S.C. § 848(b). In particular, Palmer appeals the district court's denials of his motions for relief under the First Step Act of 2018 and 28 U.S.C. § 2255. After the district court issued its First Step Act order, we decided United States v. White , 984 F.3d 76 (D.C. Cir. 2020), in which we elaborated on First Step Act proceedings. Because it is unclear whether the district court began from the correct statutory mandatory minimum sentence in light of White , we remand the First Step Act appeal to the district court for it to clarify the applicable baseline; and, because the district court could change Palmer's sentence on remand, we hold the section 2255 appeal in abeyance for now.


As modified by the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1253, 100 Stat. 3207, 3207-14 to 3207-15 (codified as amended at 21 U.S.C. § 848 ), a CCE offense includes a felony violation of the federal drug laws that is part of a series of drug-law violations undertaken in concert with five or more other persons. See 21 U.S.C. § 848(c) (1988).1 Although the original CCE statute included a ten-year mandatory minimum, see Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, § 408, 84 Stat. 1236, 1265; see also Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 6481(a), 102 Stat. 4181, 4382 (mandatory minimum in section 848(a) increased from ten to twenty years), the Congress inserted the "Super CCE" provision, mandating a life sentence if the offender is one of the "principal administrators, organizers, or leaders" of the enterprise and the underlying felony "involved at least 300 times the quantity of a substance described in" 21 U.S.C. § 841(b)(1)(B), see 21 U.S.C. § 848(b) (1988) ; see also United States v. Williams-Davis , 90 F.3d 490, 510 (D.C. Cir. 1996) (detailing genesis of Super CCE provision).

Elsewhere in the Anti-Drug Abuse Act of 1986, the Congress established a quantity-based sentencing regime that punished crack cocaine offenses 100 times more harshly than powder cocaine offenses. See § 1002, 100 Stat. at 3207–2 to 3207–4 (codified at 21 U.S.C. § 841(b)(1) (1988) ). For example, a conviction of possession of 5 grams of crack cocaine with intent to distribute called for the same five-year mandatory minimum prison sentence as a conviction of possession of 500 grams of powder cocaine with intent to distribute. See id. ; Dorsey v. United States , 567 U.S. 260, 263–64, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Incorporating those quantities into the Super CCE offense's "300 times" threshold, the leader of a drug trafficking operation could be convicted of the Super CCE offense based on 1,500 grams of crack cocaine or 150,000 grams of powder cocaine.2

Over the next two decades, the United States Sentencing Commission (USSC or Commission) "and others in the law enforcement community strongly criticized [the] Congress’ decision to set the crack-to-powder mandatory minimum ratio at 100-to-1." Dorsey , 567 U.S. at 268, 132 S.Ct. 2321. "[A]lthough the Commission thought that it was reasonable to conclude that ‘crack cocaine poses greater harms to society than does powder cocaine,’ " Terry v. United States, ––– U.S. ––––, 141 S. Ct. 1858, 1861, 210 L.Ed.2d 108 (2021) (quoting USSC, Special Report to the Congress: Cocaine and Federal Sentencing Policy 195–97 (Feb. 1995) (1995 Report)), the Commission determined that the 100-to-1 disparity was too large because, inter alia , it overstated the comparative harms of crack and powder cocaine, defeated the " ‘proportionality’ goal" of punishing prolific drug traffickers more severely than retail-level dealers and created a perception that the sentencing regime was race-based because those convicted of crack cocaine offenses were disproportionately black, Dorsey , 567 U.S. at 268–69, 132 S.Ct. 2321 (citing Kimbrough v. United States , 552 U.S. 85, 97–98, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) ; 1995 Report at 197–98; USSC, Special Report to Congress: Cocaine and Federal Sentencing Policy 8 (Apr. 1997); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 91, 103 (May 2002); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007)).

In the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, the Congress responded to the Commission's call for reform and reduced the crack-to-powder disparity to 18-to-1. Terry , 141 S. Ct. at 1861. To narrow the gap, section 2 of the Fair Sentencing Act left the powder quantities the same and increased the crack cocaine quantity thresholds that triggered mandatory minimums. § 2(a), 124 Stat. at 2372. In relevant part, the triggering quantity increased from 5 grams to 28 grams. Id. § 2(a)(2), 124 Stat. at 2372. The Fair Sentencing Act therefore increased the threshold to trigger a mandatory life sentence under the Super CCE provision from 1,500 grams to 8,400 grams (300 times 28 grams). "These changes did not apply to those who had been sentenced before 2010." Terry , 141 S. Ct. at 1861.

Enter the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The First Step Act made the Fair Sentencing Act's quantity changes retroactive and gives the court the discretion to reduce the sentences of certain crack cocaine offenders. See First Step Act § 404, 132 Stat. at 5222; Terry , 141 S. Ct. at 1862. Under section 404 of the First Step Act, a defendant who committed a "covered offense" may move for 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." § 404(b), 132 Stat. at 5222. A " ‘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" the enactment of the Fair Sentencing Act in 2010. See id. § 404(a), 132 Stat. at 5222.


In the late 1980s, Michael Palmer ran a large-scale drug conspiracy that sold crack cocaine in Washington, D.C. In 1989, a jury convicted him on twelve counts, including, significantly, running a CCE "involving more than 1500 grams" of crack cocaine and thus triggering the Super CCE provision. United States v. Harris , 959 F.2d 246, 253 (D.C. Cir. 1992) (per curiam). After sentencing Palmer to the statutorily required mandatory minimum—life without the possibility of parole, 21 U.S.C. § 848(b) (1988)—the sentencing judge commented that Palmer's sentence was "long and harsh" because his "conspiracy brought between 100 and 200 kilo[gram]s of crack [cocaine] into this city; sold it in several neighborhoods; created or supported hundreds, if not thousands, of addicts"; and "created havoc and misery in [its] path." App. 19–20. The Presentence Investigation Report also estimated that Palmer's operation distributed more than 150 kilograms of crack cocaine. More broadly, in discussing the "sentencing principles" behind the sentences for Palmer and his lieutenants, the sentencing judge noted that

more important than punishment is ... deterrence. Deterrence means sending a message to others. The message is this: if you bring large amounts of drugs into the District of Columbia for sale, and particularly if it's operated with weapons and with violence, you will go to the penitentiary for a long time, perhaps for life.

Tr. of Harris Sentencing, at 4. The sentencing judge also remarked, "In the 25 years ... that I have been on the bench, I have seldom, if ever, seen a case in which the evidence was as overwhelming as it was in this case ... and particularly [as to] the guilt of Mr. Palmer." Tr. of Palmer Sentencing, at 7.

We affirmed Palmer's convictions on direct appeal, Harris , 959 F.2d at 252–57, and over the last twenty years, Palmer has pressed numerous claims seeking relief under 28 U.S.C. § 2255, see United States v. Palmer, 97 F.3d 593 (Table) (D.C. Cir. 1996) (per curiam); United States v. Palmer , 296 F.3d 1135 (D.C. Cir. 2002) ; United States v. Palmer , 902 F. Supp. 2d 1, 4, 10–11 (D.D.C. 2012). In 2012, the district court consolidated Palmer's claims and partially granted his section 2255 petition, vacating five of his convictions based on changes in the law of merger. Palmer , 902 F. Supp. 2d at 10–12. The district court, however, left the CCE conviction and sentence intact, in addition to six other counts, id. at 11–12, and, in 2015, it issued, at Palmer's request, an amended judgment reflecting the vacatur of the merged counts, App. 31. In 2017, we affirmed the amended judgment. See United States v. Palmer , 854 F.3d 39, 41–42 (D.C. Cir.), cert. denied , ––– U.S. ––––, 138 S. Ct. 286, 199 L.Ed.2d 183 (2017).

On September 28, 2018, Palmer filed a pro se section 2255 petition, which his counsel supplemented on August 11, 2019. In an unpublished order on July 2, 2020, the district court denied the supplemented motion, concluding that Palmer's section 2255 petition was successive under 28 U.S.C. § 2255(h) and therefore the court "lack[ed] jurisdiction to rule on the motion" without ...

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