United States v. Russell

• Decision Date: 15 April 2021
• Docket Number: No. 19-12717,19-12717
• Citation: 994 F.3d 1230
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Oral Roger RUSSELL, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

994 F.3d 1230

UNITED STATES of America, Plaintiff - Appellee,

v.Oral Roger RUSSELL, Defendant - Appellant.

No. 19-12717

United States Court of Appeals, Eleventh Circuit.

April 15, 2021

Jonathan Colan, Lisa A. Hirsch, Stephen Schlessinger, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, MIAMI, FL, for Plaintiff - Appellee.

Andrew L. Adler, Federal Public Defender's Office, FORT LAUDERDALE, FL, Michael Caruso, M. Caroline McCrae, Federal Public Defender, Federal Public Defender's Office, WEST PALM BEACH, FL, for Defendant - Appellant.

Before JORDAN, JILL PRYOR and BRANCH, Circuit Judges.

JILL PRYOR, Circuit Judge:

Oral Russell, a federal prisoner, sent the district court a short letter asking the court to appoint counsel to assist him in filing a motion for a sentence reduction under the First Step Act of 2018. The district court construed Russell's pro se letter as a motion for a sentence reduction and, without giving Russell any opportunity to be heard, denied the motion. Russell, still proceeding pro se , then filed a motion for reconsideration, arguing that he was eligible for a sentence reduction and the court should award him one. The district court denied that motion as well. Russell, now represented by counsel, appeals the district court's orders. After careful review and with the benefit of oral argument, we vacate and remand for further proceedings in the district court.

I.

A federal grand jury charged Russell with possessing with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Before trial, the government gave notice that it intended to seek an enhanced punishment because Russell previously had been convicted of a felony drug offense. As a result, Russell faced a penalty range of 20 years to life. See 21 U.S.C. § 841(b)(1)(A) (2007).

After the government gave notice, Russell pled guilty. In the plea agreement, Russell admitted that he was guilty of "knowing possession with intent to distribute at least 50 grams of cocaine base." Doc. 27 at 1.¹ The parties attached to the plea agreement a "Factual Basis," which they agreed was a "true and accurate description of the relevant offense conduct" and "constitute[d] the defendant's relevant conduct under Section 1B1.3 of the Sentencing Guidelines." Id. According to the Factual Basis, if the case had gone to trial, the government would have been able to prove beyond a reasonable doubt that law enforcement officers seized a total of 441.2 grams of crack cocaine from Russell.

After the court accepted Russell's guilty plea, a probation officer prepared a presentence investigation report ("PSR"). The PSR recounted that the offense involved 441.2 grams of crack cocaine. The PSR found that Russell qualified as a career offender under the Sentencing Guidelines. See U.S.S.G. § 4B1.1. After applying the career-offender enhancement, the PSR calculated his guidelines range as 262 to 327 months’ imprisonment. The district court sentenced him to 262 months’ imprisonment.² Russell did not appeal his sentence.

A few years after Russell was sentenced, Congress passed the Fair Sentencing Act of 2010 to address disparities in sentences between offenses involving crack cocaine and those involving powder cocaine. See Pub. L. No. 111-220, 124 Stat. 2372 (2010) ; see also Kimbrough v. United States , 552 U.S. 85, 97–100, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (providing background on disparity). The Fair Sentencing Act increased the quantity of crack cocaine necessary to trigger the highest statutory penalties from 50 grams to 280 grams and the quantity of crack cocaine necessary to trigger intermediate statutory penalties from 5 grams to 28 grams. See Fair Sentencing Act § 2; 21 U.S.C § 841(b)(1)(A)(iii), (B)(iii). Until recently, the Fair Sentencing Act's reduced penalties applied only to defendants who were sentenced on or after the Fair Sentencing Act's effective date. Dorsey v. United States , 567 U.S. 260, 264, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).

In 2018, Congress passed the First Step Act, Pub. L. No. 115-391 § 404, 132 Stat. 5194, 5222 (2018), to give district courts the discretion "to apply retroactively the reduced statutory penalties for crack-cocaine offenses in the Fair Sentencing Act of 2010 to movants sentenced before those penalties became effective." United States v. Jones , 962 F.3d 1290, 1293 (11th Cir. 2020). Section 404 of the First Step Act authorizes a district court "that imposed a sentence for a covered offense" to reduce a defendant's sentence. First Step Act § 404(b). A "covered offense" refers to 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." Id. § 404(a). The First Step Act permits a district court to "impose a reduced sentence as if" the Fair Sentencing Act had been "in effect at the time the covered offense was committed." Id. § 404(b). The First Step Act leaves to the district court's discretion whether to reduce a sentence for an eligible defendant, stating that "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section." Id. § 404(c).

After the First Step Act went into effect, Russell sent the district court a one-page letter, asking the court to appoint counsel to assist him in filing a motion for a sentence reduction under the First Step Act. Nothing in Russell's short letter addressed the merits of whether he was eligible for, or should be awarded, a sentence reduction. The district court nonetheless construed Russell's letter as a motion requesting a sentence reduction under the First Step Act and directed the government to file a response.

The government opposed any reduction to Russell's sentence. If the Fair Sentencing Act had been in effect at the time of Russell's sentencing, the government argued, it would have had "no impact" on Russell's sentence because the maximum penalty for an offense involving 441.2 grams of crack cocaine remained the same under the Fair Sentencing Act. Doc. 63 at 2. The government limited its response to arguing that Russell was ineligible for relief. It did not address whether, if Russell were eligible for relief, the court should exercise its discretion to reduce Russell's sentence.³

In a two-paragraph order, the district court denied Russell a sentence reduction. The court stated that Russell was "not eligible" for a sentence reduction because his offense involved 452.2 grams of crack cocaine,⁴ an offense involving this drug quantity remained subject to the same penalty range after the Fair Sentencing Act, and there was no change to his advisory guidelines range. Doc. 64 at 1. In addition, the district court said, even if Russell were eligible for a sentence reduction under the First Step Act, after "considering the statutory factors set forth in 18 U.S.C. § 3553(a)," the court would not exercise its discretion to grant a sentence reduction.⁵ Id.

Russell, still proceeding pro se , filed a motion for reconsideration. This motion was his first opportunity to address his eligibility for a sentence reduction. He argued that he was eligible because he had been charged with, and pled guilty to, an offense involving 50 grams or more of crack cocaine, an offense for which the Fair Sentencing Act changed the penalty range.

In addition, Russell urged the district court to exercise its discretion to award a sentence reduction, saying that he had been rehabilitated while incarcerated. He submitted records showing that during his 13 years of incarceration he had no disciplinary infractions, participated in a program to assist inmates with special needs, completed over 1,200 hours of GED coursework, and worked as a barber. Prison officials described Russell as a "good role model to other inmates" who was "responsible, reliable, and trustworthy." Doc. 65 at 21.

The district court, in another short order, denied Russell's motion for reconsideration. The court observed that Russell had admitted in his factual proffer that his offense involved 441.2 grams of crack cocaine. Given this drug quantity, the court said, if Russell were indicted today, the government would have alleged in the indictment that the offense involved an amount of crack cocaine sufficient to trigger the same statutory penalty. The court did "not believe that Congress intended to give Defendant and others similarly situated to get [sic] the benefit of a sentence reduction." Doc. 66 at 1.

After the district court denied the motion for reconsideration, an attorney with the Federal Public Defender filed a motion for appointment of counsel, seeking to represent Russell on appeal. The attorney explained that Russell's eligibility for relief under the First Step Act raised a question of first impression that had broad application and pointed out that Russell previously had requested the assistance of counsel in seeking relief under the First Step Act. The district court granted the motion, and Russell is represented by counsel on appeal.

II.

We review de novo whether a district court had the authority to modify a term of imprisonment. Jones , 962 F.3d at 1296. We review a district court's denial of an eligible movant's request for a reduced sentence under the First Step Act for an abuse of discretion. Id. ; United States v. Harris , 989 F.3d 908, 911–12 (11th Cir. 2021). Although our review of a district court's decision whether to exercise its discretion is deferential, it "is not simply a rubber stamp." United States v. Johnson , 877 F.3d 993, 997 (11th Cir. 2017) (internal quotation marks omitted).

III.

The question before us is whether the district court abused its discretion when, after construing Russell's letter requesting counsel as a motion for a sentence reduction, it refused to grant him a sentence reduction and then denied his motion for reconsideration. A district court generally lacks the authority...