USA v. Elam, No. 22-40373 (5th Cir. 2023)

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Case: 22-40373 Document: 00516921358 Page: 1 Date Filed: 10/05/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED October 5, 2023 Lyle W. Cayce Clerk No. 22-40373 ____________ United States of America, Plaintiff—Appellee, versus Spencer Garod Elam, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:11-CR-42-1 ______________________________ Before Wiener, Southwick, and Duncan, Circuit Judges. Per Curiam: * Spencer Elam appeals the district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(1). The court concluded that a non-retroactive change to the applicable sentencing framework did not qualify as an “extraordinary and compelling reason” to reduce Elam’s sentence. Finding no abuse of discretion, we affirm. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-40373 Document: 00516921358 Page: 2 Date Filed: 10/05/2023 No. 22-40373 I. In 2012, a jury convicted Elam on six counts of various drug and firearm-related offenses. Two of those counts (counts 2 and 4) were for using, carrying, or possessing a firearm during and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). 1 Elam’s total prison sentence for all counts was 480 months. The two § 924(c) offenses accounted for 360 months—60 months on count 2 and 300 months on count 4. The lengthier count 4 sentence arose from the fact that, under the version of § 924(c) then in effect, second or subsequent convictions triggered a 300-month minimum. See 18 U.S.C. § 924(c)(1)(C) (2006). Moreover, another part of § 924(c) provided that the 360 months on counts 2 and 4 could not run concurrently with Elam’s other sentences. See § 924(c)(1)(D)(ii). So, the 360 months for the two § 924(c) counts would be served consecutively to the 120 months for the other counts, yielding a total sentence of 480 months. In 2018, the First Step Act amended the sentencing framework for persons convicted of multiple § 924(c) offenses. As amended, the minimum 300-month sentence for a second § 924(c) conviction is required only when the first § 924(c) sentence is “final” at the time of the second conviction. See First Step Act of 2018, Pub. L. No. 115-391, § 403, 132 Stat. 5194, 5221–22; § 924(c)(1)(C) (2022). So, had Elam been sentenced under the current framework, the mandatory minimum for his second § 924(c) conviction _____________________ 1 In addition to counts 2 and 4, Elam’s convictions were for conspiracy to possess with intent to distribute hydrocodone in violation of 21 U.S.C. §§ 846, 841(b)(1)(E) (count 1); possession with intent to distribute hydrocodone in violation of 21 U.S.C. § 841(a)(1), (b)(1)(E)(ii) (count 3); felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (count 5); and use of a communication facility to facilitate the commission of a felony in violation of 21 U.S.C. § 843(b) (count 11). 2 Case: 22-40373 Document: 00516921358 Page: 3 Date Filed: 10/05/2023 No. 22-40373 would have been only 60 months. Congress, however, did not make these changes retroactive. See First Step Act of 2018, Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222 (specifying that the changes “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment” (emphasis added)). Nonetheless, after exhausting his administrative remedies, Elam filed a motion under 18 U.S.C. § 3582(c)(1) to reduce his prison term based on the 2018 amendment. 2 He argued that the amendment presented an “extraordinary and compelling” reason warranting a reduction. See id. § 3582(c)(1)(A)(i) (allowing court to reduce prison term, if, inter alia, “extraordinary and compelling reasons warrant such a reduction”). And pointing to his purported rehabilitation, Elam asked that his total sentence be reduced to either time served or 240 months to reflect the new 60-month mandatory minimum for successive § 924(c) offenses like his. The district court denied Elam’s motion, concluding that the non-retroactive change to § 924(c)’s sentencing framework was neither “extraordinary” nor “compelling.” 3 Elam appealed. His only colorable argument is that the district court erred by concluding the non-retroactive amendment to § 924(c) did not amount to an “extraordinary and compelling reason[]” for reducing his sentence under § 3582(c)(1)(A)(i). 4 We review that decision for abuse of _____________________ 2 Elam had counsel in the district court but is pro se on appeal. 3 The district court also found that Elam’s purported rehabilitation did not affect its analysis, given the statute’s express provision that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t). The court reasoned that “[t]wo ordinary reasons cannot combine to create an extraordinary one.” 4 Contrary to Elam’s argument, the district court did not treat as binding the Sentencing Commission’s policy statement on § 3582(c)(1)(A). The district court stated 3 Case: 22-40373 Document: 00516921358 Page: 4 Date Filed: 10/05/2023 No. 22-40373 discretion. United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020). “[A] court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Cooper, 996 F.3d 283, 286 (5th Cir. 2021) (alteration in original) (quoting Chambliss, 948 F.3d at 693). II. A prisoner moving for a sentence reduction under § 3582(c)(1)(A) must show the reduction is (1) warranted by “extraordinary and compelling reasons”; (2) consistent with the Sentencing Commission’s applicable policy statements; and (3) justified under the discretionary § 3553(a) factors. See § 3582(c)(1)(A)(i); United States v. Shkambi, 993 F.3d 388, 392 (5th Cir. 2021). Instead of defining “extraordinary and compelling reasons” for purposes of § 3582, Congress delegated to the Commission the authority to promulgate policy statements describing what those reasons might be. Shkambi, 993 F.3d at 391 (citing 28 U.S.C. § 994(t)). Under current law, however, the Commission’s policy statements only govern motions brought by the Bureau of Prisons, not those brought by prisoners. Id. at 392. As noted, the district court concluded that the non-retroactive 2018 change to § 924(c)’s sentencing regime did not count as an “extraordinary and compelling” reason under § 3582(c)(1)(A)(i). Elam argues this was an abuse of discretion. There is a circuit split on this question. 5 While our circuit _____________________ precisely the opposite. The policy statement merely “inform[ed] [the district court’s] analysis,” which is permissible. United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021). 5 Compare United States v. McCall, 56 F.4th 1048, 1055 (6th Cir. 2022) (en banc), United States v. Jenkins, 50 F.4th 1185, 1198–99 (D.C. Cir. 2022), United States v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022), United States v. Andrews, 12 F.4th 255, 261 (3d Cir. 2021), and United States v. Thacker, 4 F.4th 569, 575 (7th Cir. 2021), with United States v. Chen, 48 F.4th 1092, 1098–99 (9th Cir. 2022), United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 4 Case: 22-40373 Document: 00516921358 Page: 5 Date Filed: 10/05/2023 No. 22-40373 has not authoritatively weighed in on the issue, a recent unpublished opinion concluded that such a non-retroactive change cannot warrant a reduced sentence under § 3582(c)(1)(A)(i). See United States v. McMaryion, No. 2150450, 2023 WL 4118015, at *2 (5th Cir. June 22, 2023) (holding “a prisoner may not leverage non-retroactive changes in criminal law to support a compassionate release motion, because such changes are neither extraordinary nor compelling”) (citing United States v. Jenkins, 50 F.4th 1185, 1198–1200 (D.C. Cir. 2022), and United States v. McCall, 56 F.4th 1048, 1065–66 (6th Cir. 2022) (en banc)). In light of McMaryion, we cannot say that the district court abused its discretion here. We note that a forthcoming policy statement from the Sentencing Commission would apply to sentence reduction motions by both the Bureau of Prisons and prisoners themselves. 6 That policy statement indicates that district courts “may” consider changes in law as part of the “extraordinary and compelling” reasons analysis, but “only” after “full[y] consider[ing]” the prisoner’s “individualized circumstances.” See U.S.S.G. § 1B1.13(b)(6)(a) (2023). We express no view on whether Elam may file an additional motion based on the amended policy statement and his individualized circumstances. See, e.g., United States v. Bethea, 54 F.4th 826, 833 n.2 (4th Cir. 2022) (noting “that § 3582(c) does not prevent prisoners from filing successive motions”). And, of course, we express no view on whether any such motion should be granted. AFFIRMED. _____________________ 2022), United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021), and United States v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020). 6 See U.S.S.G. § 1B1.13(a) (2023) (https://perma.cc/7AXU-G63S). Barring contrary action from Congress, this amendment will go into effect on November 1, 2023. See 28 U.S.C. § 994(p). 5

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