United States v. Venable

• Decision Date: 20 November 2019
• Docket Number: No. 19-6280,19-6280
• Citation: United States v. Venable, 943 F.3d 187 (4th Cir. 2019)
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Bobby Junior VENABLE, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

943 F.3d 187

UNITED STATES of America, Plaintiff – Appellee,

v.Bobby Junior VENABLE, Defendant – Appellant.

No. 19-6280

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2019

Decided: November 20, 2019

ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before AGEE, THACKER, and QUATTLEBAUM, Circuit Judges.

Vacated and remanded by published opinion. Judge Agee wrote the opinion, in which Judge Thacker and Judge Quattlebaum joined.

AGEE, Circuit Judge:

Bobby Junior Venable appeals from the district court’s summary denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(1)(B), as authorized by the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). The district court held that the First Step Act did not authorize a reduction in Venable’s sentence because he had completed his original term of imprisonment and was currently in custody following revocation of supervised release. For the reasons set out below, we conclude that the district court erred in determining Venable was statutorily ineligible for a sentence reduction under the First Step Act. Therefore, we vacate the judgment denying Venable’s motion and remand to the district court to consider that motion on the merits in the first instance.

I.

A.

The statutory framework for this case involves the intersection of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010), and the First Step Act. The Fair Sentencing Act reduced the penalties for specific cocaine-related offenses punishable under 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) by increasing the amount of cocaine base required to trigger certain statutory penalties. In relevant part, Section 2 of the Fair Sentencing Act increased from 5 grams to 28 grams the quantity of cocaine base required to trigger the statutory penalties for a Class B felony set forth in 21 U.S.C. § 841(b)(1)(B). This change also meant that an offense for less than 28 grams would thereafter be classified as a Class C felony and subject to lower statutory penalties.

In late 2018, Congress enacted and the President signed into law the First Step Act, with the purpose of modifying prior sentencing law and expanding vocational training, early-release programs, and other initiatives designed to reduce recidivism. See, e.g. , John Wagner, Trump Signs Bipartisan Criminal Justice Bill Amid Partisan Rancor over Stopgap Spending Measure , Washington Post, Dec. 21, 2018. In particular, Section 404 of the First Step Act allows previously sentenced defendants to file a motion requesting the sentencing court to "impose a reduced sentence as if [S]ections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed." Pub. L. 115-391, § 404; 132 Stat. 5194, 5222 (2018).^{1 2} A "covered offense" is defined in the First Step Act as "a violation of a Federal criminal statute, the statutory penalties for which were modified by [S]ection 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010." Id.

B.

In 1997, Venable pleaded guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a) (Count One), and possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (Count Two). Venable stipulated that his applicable drug weight for Count One was 12.1 grams of cocaine base. This quantity of drugs was classified as a Class B felony under then-applicable law, which provided for a statutory minimum term of imprisonment of 5 years and a maximum term of 40 years’ imprisonment.³ The district court sentenced Venable to 110 months’ imprisonment on each count, to be served concurrently. Venable also received four years of supervised release on Count One and three years on Count Two, also to be served concurrently.

In March 2008, under 18 U.S.C. § § 3582(c)(2), the district court reduced Venable’s sentence to 92 months’ imprisonment or time served, whichever was longer, consistent with Amendment 706 to the United States Sentencing Guidelines.⁴ Because Venable had already served more than 92 months’ imprisonment, he was released from custody and began serving his four-year term of supervised release, which had not been changed.

In 2010, while on supervised release, Venable was arrested on new state charges for two counts of possession with intent to distribute oxycodone and one count of possession with intent to distribute morphine. Thereafter, the United States Probation Office filed a petition to revoke Venable’s supervised release, representing that the state offenses were a violation of its terms. Because Venable’s federal drug conviction was classified as a Class B felony at the time, his statutory maximum term of imprisonment for the supervised release violation was 3 years. See 18 U.S.C. § 3583(e)(3). The district court sentenced Venable to 15 months’ incarceration, to run consecutively to Venable’s 10-year state sentence on the state drug convictions. He was not sentenced to any additional period of supervised release. Having completed his state sentence, Venable is currently serving his revocation sentence in the custody of the federal Bureau of Prisons (the "BOP").⁵

In early 2019, Venable filed a motion for a sentence reduction based on Section 404 of the First Step Act. He asserted that, read together, Section 404 of the First Step Act and Section 2 of the Fair Sentencing Act reduced the statutory penalties applicable to his prior federal drug offense. Specifically, Venable claimed that he would no longer face a statutory minimum term of imprisonment and would instead only be subject to a 20-year statutory maximum term. Venable then asked the district court to resentence him to 63 months’ imprisonment for his original federal drug conviction. He claimed this sentence would allow the BOP to credit him for overserved time, to be applied to his current term of imprisonment for revocation of supervised release. He asserted that after the various calculations were made, it would result in a sentence of time served and that he would be entitled to immediate release.

The district court summarily denied Venable’s motion. In the "additional comments" section of a form order, the district court stated that "[d]efendant has finished his term of incarceration and is currently in custody following revocation of his supervised release. No reduction is authorized." J.A. 25.

Venable noted a timely appeal, and the Court has jurisdiction under 28 U.S.C. § 1291.

II.

A.

On appeal, Venable asserts that the district court had the authority to reduce either his original sentence or his revocation sentence (or both) under the First Step Act. Citing Fourth Circuit precedent adopting the "unitary" theory of sentencing, Venable argues that his revocation sentence is part of his original sentence for the federal drug conviction to which the First Step Act’s provisions apply. He further asserts that his revocation sentence must be considered part of his original sentence because he did not violate a new criminal statute, nor did he have a new trial; rather, he violated the terms and conditions of his original criminal judgment under 21 U.S.C. § 841(a).

In addition, Venable contends that because the Fair Sentencing Act reduced the statutorily authorized sentences for both the terms of imprisonment and terms of supervised release, those changes necessarily had an effect on the entire sentence a defendant may serve. This includes the term of imprisonment or supervised release authorized for defendants whose initial term of supervised release has been revoked. For example, he points out that under the Fair Sentencing Act, his original federal drug conviction would now be classified as a Class C, rather than a Class B, felony. The effect of this reclassification not only reduces the original statutory penalties for the term of imprisonment for the drug conviction, but also shortens the maximum revocation sentence for a violation of supervised release from three years (authorized for Class B felonies) to two years (authorized for Class C felonies).

Consequently, Venable contends the district court is authorized to change his revocation sentence as a result of these statutory amendments under the First Step Act and Fair Sentencing Act. At bottom, Venable argues that because his revocation sentence was part of a unitary sentence, the district court had the authority to reduce either his original term of imprisonment and supervised release or the revocation term of imprisonment and supervised release. As such, he contends the district court erred in concluding it lacked that authority.

In its brief to this Court, the Government disagreed with Venable and posited that revocation sentences are separate offenses unaffected by the First Step Act. Under this position, Venable’s current revocation incarceration would stem not from the original criminal statutes under which he was convicted, but rather from 18 U.S.C. § 3583(e)(3), which does not fall under the First Step Act as a "covered offense." The Government further argued on brief that even if the district court erred in stating that it had no authority to reduce Venable’s sentence, such an error was harmless as a matter of law. Conceding that normally a mistaken ruling on the scope of a court’s legal authority would constitute reversible error, the Government nonetheless contended that the Court should deem any error harmless as a matter of law given the serious policy concerns supporting the denial of Venable’s motion. In particular, the Government asserted that it would...