United States v. Sutton, 19-2009

• Decision Date: 23 June 2020
• Docket Number: No. 19-2009,19-2009
• Citation: 962 F.3d 979
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gene C. SUTTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

962 F.3d 979

UNITED STATES of America, Plaintiff-Appellee,

v.Gene C. SUTTON, Defendant-Appellant.

No. 19-2009

United States Court of Appeals, Seventh Circuit.

Argued May 26, 2020

Decided June 23, 2020

W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant

Before Flaum, Scudder, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Over a decade ago, the district court (then Chief Judge McCuskey) sentenced Gene Sutton to his then statutory minimum 15 years’ imprisonment for distributing cocaine base ("crack") and carrying a firearm during a drug-trafficking crime. In announcing the sentence, the court emphasized that it had no authority to reduce the sentence further or amend it later, except on the government's motion, and that the court's authority had been so limited since the Sentencing Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1837. "Nobody's going to change it," the court told Sutton.

But Congress did change things when it passed the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Under § 404 of this new law, a defendant sentenced for a covered offense (which includes Sutton's crack cocaine charge) may move for the district court to impose a reduced sentence. Sutton submitted his motion seeking relief and the district court, now Judge Shadid, denied it. On Sutton's pro se appeal, we recruited counsel to submit supplemental briefing on the narrow question of the proper vehicle for a First Step Act motion. In other words, we asked the parties to brief how the First Step Act interacts with the Sentencing Reform Act, which, as Judge McCuskey recognized, generally prohibits a court from modifying a sentence.

We hold that the First Step Act is its own procedural vehicle. The dispute between the parties is, at this point, mostly semantic, though our conclusion does clarify that the only limits on the district court's authority under the First Step Act come from the interpretation of the First Step Act itself. With that said, this is not the case to explore fully what those limits might be. We conclude that the district court did not abuse its discretion and, therefore, affirm the judgment.

I. Background

Sutton pleaded guilty to his two charges in 2008 and admitted that he distributed 124 grams of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A), and had carried a firearm in connection with that offense, 18 U.S.C. § 924(c). Distributing more than 50 grams of crack carried a 10-year statutory minimum sentence at the time, and § 924(c) required the court to impose a five-year sentence consecutive to that of the underlying offense, 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). The minimum total sentence for Sutton's conduct was, thus, 15 years’ imprisonment.

As sentencing approached, the parties disagreed on the importance of this minimum sentence. Sutton contended that he was entitled to a three-offense-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. By his calculation, his Guidelines range should have been 147–168 months’ imprisonment (including the 60 months for the § 924(c) charge) and so the minimum 180-month sentence was appropriate. See U.S.S.G. § 5G1.1(b). The government, however, argued that Sutton had lied under oath at his detention hearing. It opposed the three-level reduction and sought a further two-level enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. This would have resulted in a sentencing range of 248–295 months. (The parties also differed on whether Sutton was responsible for 19 kilograms of powder cocaine, though it was irrelevant to the Guidelines calculation.)

The district court never resolved these disputes. Instead, the parties entered a sentencing agreement reflecting an agreed 180-month sentence. Sutton and the government would "agree to disagree," according to defense counsel, and the government likewise said it intended to "short-circuit th[e] process." In imposing the sentence reflected in the agreement, the district court similarly asserted that the agreement would "supersede the presentence report" and make all disputes "irrelevant" and "moot."

The year after entry of judgment in Sutton's case, Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. Section 2 of the Fair Sentencing Act raised from 50 grams to 280 grams the amount of crack cocaine necessary to trigger the 10-year minimum sentence. See United States v. Shaw , 957 F.3d 734, 736–37 (7th Cir. 2020) (providing tables listing changes). This could have helped Sutton, who had been convicted for distributing less than 280 grams, but the Fair Sentencing Act was not initially retroactive for defendants sentenced before its effective date, August 3, 2010. See Dorsey v. United States , 567 U.S. 260, 264, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).

Congress made the Fair Sentencing Act retroactive for someone like Sutton eight years later. Under the First Step Act,

[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.

First Step Act, § 404(b) (citation omitted). A covered offense is defined as "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) (citation omitted); see Shaw , 957 F.3d at 739 (interpreting this definition).

Sutton moved for a reduced sentence in early 2019. (The parties have consistently agreed he is eligible for relief.) He primarily argued that the agreement entitled him to his new statutory minimum—ten years—and, thus, immediate release. The government responded that Sutton had already received a sentencing benefit from the agreement as is. The district court sided with the government and declined to reduce Sutton's sentence further. In doing so, the court characterized the government's sentencing agreement as being in exchange for Sutton's "withdrawal" of his objections to the PSR. Thus, it used probation's amended Guidelines range, which assumed Sutton had obstructed justice and was responsible for the 19 kilograms of powder cocaine. Sutton unsuccessfully sought reconsideration and submitted an untimely notice of appeal.

II. Jurisdiction

We start with some jurisdictional housekeeping. First, Sutton's late notice of appeal does not deprive us of authority to hear this case. Federal Rule of Appellate Procedure 4(b), which governs the timing of criminal appeals, is a non-jurisdictional claim-processing rule whose enforcement the government may either waive or forfeit. United States v. Neff , 598 F.3d 320, 323 (7th Cir. 2010). The government has expressly waived its rights, so we consider the appeal on its merits.

Sutton was also released from prison a month before oral argument, though the parties agree that his release does not moot the appeal. Sutton is serving a five-year term of supervised release. If we were to find that the district court erred in denying a sentence reduction, it would not "automatically entitle him to less supervised release" but it would carry "great weight" in a motion to terminate supervised release under 18 U.S.C. § 3583(e)(1). Pope v. Perdue , 889 F.3d 410, 415 (7th Cir. 2018) (citing United States v. Johnson , 529 U.S. 53, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) ). Moreover, the parties also agree the First Step Act permits the district court to reduce Sutton's term of supervised release, because § 404(b) refers to imposing a reduced sentence and not just a term of imprisonment. The sentence includes not only the term of imprisonment but also the term of supervised release and any fines. See 18 U.S.C. §§ 3551, 3583. If we were to remand, the district court could decide whether to reduce Sutton's supervised release term and, in doing so, "factor in how much (if at all) it would have reduced [his] prison term." United States v. Holloway , 956 F.3d 660, 664 (2d Cir. 2020) ; see also United States v. Kelley , No. 19-30066, 962 F.3d 470, 474 n.5 (9th Cir. June 15, 2020) (same).

There are, thus, at least two possible remedies. Because we can order "effectual relief," even if not Sutton's early release from prison, this appeal is not moot. Church of Scientology v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).

III. Procedural Vehicle

We now turn to the question on which we sought supplemental briefing: what the proper procedural vehicle is for a motion under § 404(b) of the First Step Act. The problem presented is the interaction between the First Step Act and the Sentencing Reform Act. The former permits an already sentenced defendant to request, and a district court to impose, a reduced sentence. Under the latter, though, "[t]he court may not modify a term of imprisonment once it has been imposed," with three identified exceptions. 18 U.S.C. § 3582(c).

The first exception under the Sentencing Reform Act permits a court to reduce a term of imprisonment for "extraordinary and compelling reasons" or for certain elderly prisoners. 18 U.S.C. § 3582(c)(1)(A). Originally, only the Bureau of Prisons could submit a motion under this subsection, but the First Step Act added that a defendant can now file a motion himself after exhausting administrative remedies. See id. ; First Step Act, § 603(b)(1).

The second exception is a catch-all: "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). Rule 35 is a limited remedy, available only within 14 days...