United States v. White

Decision Date29 December 2020
Docket NumberNo. 19-3058,C/w 19-3059,19-3058
Citation984 F.3d 76
Parties UNITED STATES of America, Appellee v. Antone WHITE, also known as Tone, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

A. J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellants.

Elizabeth Gabriel, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Timothy J. Shea, U.S. Attorney, and Elizabeth Trosman and John P. Gidez, Assistant U.S. Attorneys.

Before: Tatel and Garland* , Circuit Judges, and Edwards, Senior Circuit Judge.

Edwards, Senior Circuit Judge:

The Fair Sentencing Act of 2010 raised the crack-cocaine threshold quantities for triggering certain penalty ranges for convictions under 21 U.S.C. § 841. However, the modifications to section 841 did not apply to defendants who were sentenced before enactment of the Fair Sentencing Act. This was changed with the passage of the First Step Act of 2018. Section 404 of that Act allows persons to seek reduced sentences if they committed certain "covered offense[s]" under section 841 prior to the enactment of the Fair Sentencing Act. The First Step Act was "intended to rectify disproportionate and racially disparate penalties" in federal sentencing. United States v. Boulding , 960 F.3d 774, 782 (6th Cir. 2020).

A "covered offense" under the First Step Act is "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act ..., that was committed before August 3, 2010." First Step Act § 404(a). "A court that imposed a sentence for a covered offense may, [pursuant to a proper motion], 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." Id . § 404(b). However, a district court may not "entertain a motion" for a defendant who has already had his sentence imposed or reduced "in accordance with" sections 2 or 3 of the Fair Sentencing Act. Id. § 404(c). Nor may a district court "entertain a motion" if a previous section 404 motion on behalf of the same defendant was denied "after a complete review of the motion on the merits." Id.

Appellants in this case, Antone White and Eric Hicks, were convicted in 1994 of drug and conspiracy offenses. It was not until the passage of the First Step Act that defendants like White and Hicks could seek reduced sentences. In April and May 2019, Hicks and White filed motions for reduced sentences under section 404 of the First Step Act. The District Court denied White's motion and partially denied Hicks's motion. See United States v. White , 413 F. Supp. 3d 15, 53 (D.D.C. 2019). Appellants filed timely appeals to challenge the judgments of the District Court. We now reverse and remand.

The District Court held that if a defendant was convicted of a "covered offense" and is thus eligible for relief under section 404, "the final issues to address are whether relief is available and, if so, to what extent a sentence reduction is warranted as a matter of discretion." Id. at 48. This was error because, as we explain below, there is no additional "availability" requirement in section 404 beyond the covered offense requirement in section 404(a) and the limitations set forth in section 404(c). In the alternative, the District Court held that, even if relief might be available, it would not exercise its discretion to reduce Appellants’ sentences, save for one of Hicks's counts. However, in reaching this alternative judgment, it is unclear whether the court properly weighed the factors listed in 18 U.S.C. § 3553(a). And there is nothing to indicate that the District Court weighed the mitigating factors raised by Appellants, including Appellants’ post-sentencing conduct. This "silence leaves us without assurance that the district court considered [Appellants’] arguments." United States v. Shaw , 957 F.3d 734, 742 (7th Cir. 2020). Finally, it appears that the court relied on inaccurate information in weighing the claims raised by Hicks. Given these issues, we will remand the case with instructions to the District Court to reconsider Appellants’ motions.

Assessments of motions under section 404 must take account of Congress's intent to rectify disproportionate and racially disparate sentencing penalties. Appellants have raised claims that are obviously within the remedial compass of the First Step Act, and they cannot file new motions if their current section 404 claims are denied "on the merits." First Step Act § 404(c). It is therefore important that they be given full and fair hearings on their claims to ensure that the goals of the Act are met.

I. BACKGROUND
A. Statutory Background

Federal drug-offense penalties vary based on the quantity and type of drugs involved in an offense. See 21 U.S.C. § 841(b). The Anti-Drug Abuse Act of 1986 set forth three quantity-based penalty ranges: 10 years to life in prison, 5 to 40 years in prison, and up to 20 years in prison. Pub. L. No. 99-570, 100 Stat. 3207, 3207-2 to 3207-4. The act "treated crack cocaine crimes as far more serious" than powder cocaine crimes, "impos[ing] upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one one-hundredth that amount of crack cocaine." Dorsey v. United States , 567 U.S. 260, 263, 266, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).

As noted above, in 2010, Congress passed the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010), which reduced the disparity between cocaine base and powder cocaine from 100-to-1 to 18-to-1. Dorsey , 567 U.S. at 264, 132 S.Ct. 2321. Section 2 of the Act increased the threshold quantity for the "10 years to life" penalty range from 50 grams of crack cocaine to 280 grams, see Fair Sentencing Act § 2 (codified at 21 U.S.C. § 841(b)(1)(A)(iii) ), and the threshold quantity for the "5 to 40 years" penalty range from 5 grams of crack cocaine to 28 grams, see id. (codified at 21 U.S.C. § 841(b)(1)(B)(iii) ). As a result of these changes, offenses involving less than 28 grams of crack cocaine now carry a statutory maximum term of 20 years imprisonment, with no mandatory minimum penalty. See 21 U.S.C. § 841(b)(1)(C). The Fair Sentencing Act's new penalty regime, however, offered only limited redress because it did not apply to defendants sentenced prior to August 3, 2010. United States v. Swangin , 726 F.3d 205, 207 (D.C. Cir. 2013).

The Seventh Circuit has aptly noted that:

[The Fair Sentencing Act] reflected a recognition that the tremendous disparities in punishment of powder-cocaine and crack-cocaine offenses disparately impacted African Americans.
But the Fair Sentencing Act's changes to the sentencing scheme applied only to defendants who were sentenced after the law's enactment on August 3, 2010, leading us to comment that the Act might more accurately be known as "The Not Quite as Fair as it could be Sentencing Act of 2010."
Congress eventually addressed this deficiency when it passed the First Step Act of 2018.

Shaw , 957 F.3d at 737 (citations omitted).

In 2018, Congress passed the First Step Act. Pub. L. No. 115-391, 132 Stat. 5194 (2018). Section 404 of the Act allows certain individuals sentenced prior to enactment of the Fair Sentencing Act to seek a retroactively reduced sentence. Id. § 404. The section states in full:

SEC. 404. APPLICATION OF FAIR SENTENCING ACT.
(a) DEFINITION OF COVERED OFFENSE .—In this section, the term "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 ( Public Law 111–220 ; 124 Stat. 2372), that was committed before August 3, 2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED .—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 ( Public Law 111–220 ; 124 Stat. 2372) were in effect at the time the covered offense was committed.
(c) LIMITATIONS .—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.

Id.

B. Factual Background

Appellants participated in a drug trafficking organization from 1988 until 1993. See United States v. White , 116 F.3d 903, 909 (D.C. Cir. 1997). They were arrested and charged with, inter alia , conspiracy to distribute 50 grams or more of cocaine base (Count 1), Racketeer Influenced and Corrupt Organization ("RICO") conspiracy (Count 5), distribution of five grams or more of a substance containing crack cocaine (Count 18 for White and Count 11 for Hicks), and distribution of a substance containing a detectable amount of crack cocaine (Counts 8 and 10 for Hicks and Counts 6 and 7 for White). Following trial, the jury returned verdicts against White and Hicks finding them guilty of these counts. However, the jury did not indicate any additional drug weights on the verdict form.

At sentencing, the trial judge determined the statutory penalties using drug quantities found by the preponderance of the evidence. See United States v. Fields , 242 F.3d 393, 395-96 (D.C. Cir.) (describing sentencing practices prior to Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ), reh'g granted on other grounds , 251 F.3d 1041 (D.C. Cir. 2001). White's presentence investigation report ("PSR") stated that...

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