United States v. Corner, No. 19-3517 (7th Cir. 2020)
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Corner violated the conditions of his supervised release for possessing with intent to distribute 11 grams of cocaine base by using and possessing illegal drugs, failing to comply with drug testing, and lying to his probation officer about his inability to maintain employment. Corner had tested positive for controlled substances more than three times in one year. The court sentenced Corner to 18 months’ imprisonment and 42 months of supervised release.
The First Step Act of 2018 subsequently authorized courts to reduce a defendant’s sentence by retroactively applying the Fair Sentencing Act of 2010, which modified 21 U.S.C. 841(b)(1)(B)(iii), under which Corner was convicted, by reducing the statutory minimum penalties and increasing the amount of crack necessary to trigger those penalties. Corner moved (18 U.S.C. 3582(c)) for a reduction of his revocation sentence and term of supervision. Corner argued that, although his current sentence was for violating his supervised release, he was eligible for a reduction because of his original conviction. The district court denied Corner’s motion, without determining whether he was eligible for relief. Corner began his 42 months of supervision in March 2020.
The Seventh Circuit vacated. A district court’s discretionary determination whether to grant a First Step Act motion for a reduced sentence must be informed by whether the Act applies to the defendant's sentence and calculation of the new sentencing parameters.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 19 3517 UNITED STATES OF AMERICA, Plaintiff Appellee, v. VINCENT CORNER, Defendant Appellant. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 07 cr 104 — Barbara B. Crabb, Judge. ____________________ ARGUED JULY 8, 2020 — DECIDED JULY 24, 2020 ____________________ Before WOOD, BARRETT, and ST. EVE, Circuit Judges. PER CURIAM. Vincent Corner violated the conditions of his supervised release, and he was sentenced to 18 months’ im prisonment followed by 42 months’ supervised release. Cor ner later moved for a reduced sentence under section 404 of the First Step Act of 2018. The district court did not assess Corner’s eligibility for relief under the Act, explaining that it would not lower his sentence regardless of his eligibility be cause he had violated the terms of his release. Corner appeals, 2 No. 19 3517 arguing that it was procedural error for the district court to deny relief without first determining whether the Act applied to his sentence and what the new statutory penalties would be. We agree, so we vacate the judgment and remand for fur ther proceedings. While serving a term of supervised release for possessing with intent to distribute 11 grams of cocaine base (i.e., crack), 21 U.S.C. § 841(a)(1), Corner violated the conditions by using and possessing illegal drugs, failing to comply with drug test ing, and lying to his probation officer about his inability to maintain employment. Because Corner had tested positive for controlled substances more than three times in one year, the district court determined that revocation of his supervised re lease was mandatory. See 18 U.S.C. § 3583(g)(4). The court noted that the statutory maximum for Corner’s reimprison ment was three years, id. § 3583(e)(3), and that another term of supervised release of 60 months, minus the revocation sen tence, could be imposed, id. § 3583(h). It sentenced Corner to 18 months’ imprisonment (half of the statutory maximum) and 42 months of supervised release. Shortly after Corner was sentenced, Congress passed the First Step Act of 2018, which empowers district courts to re duce a defendant’s sentence by applying the Fair Sentencing Act of 2010 retroactively. First Step Act of 2018, Pub. L. No. 115–391, § 404(b), 132 Stat. 5194. The Fair Sentencing Act, in relevant part, modified 21 U.S.C. § 841(b)(1)(B)(iii)—under which Corner was convicted—by reducing the statutory min imum penalties and increasing the amount of crack necessary to trigger those penalties from 5 grams to 28 grams. Fair Sen tencing Act, Pub. L. 111 220, § 801, 124 Stat. 2372. No. 19 3517 3 Corner moved under 18 U.S.C. § 3582(c) for a reduction of his revocation sentence and term of supervision based on § 404 of the First Step Act.1 Pursuant to a standing order in the Western District of Wisconsin, the district court appointed counsel for Corner. Corner argued that, although his current sentence was for violating the terms of his supervised release, he was eligible for a reduction under the Act because his orig inal conviction was for violating 21 U.S.C. § 841. He asserted that a reduction was warranted to further Congress’s intent in passing section 404 by reducing the inequity between his total sentence and the sentences of similarly situated powder co caine defendants. It would also promote fair sentencing for Corner, whose 140 month sentence was greater than neces sary to promote the goals of sentencing because it was im posed based on a now superseded guideline range. Corner then pointed out, correctly, that, had the Fair Sen tencing Act applied at the time of his original sentencing, there would have been three material differences. First, the statutory range is now 0 to 20 years’ imprisonment; at the time of sentencing, it was 5 to 40 years. Second, his original crime now carries a maximum revocation sentence of two years’ im prisonment; he was sentenced to 18 months’ imprisonment with the understanding that his crime carried a maximum revocation sentence of 3 years. And third, his underlying of fense now carries a minimum of three years’ supervised re lease, but the additional 42 months of supervision that the court ordered to follow his revocation sentence was imposed 1 This court recently held that the First Step Act itself authorizes such motions, so a petitioner for a reduced sentence under section 404(b) does not need to invoke § 3582 as a “vehicle” for relief. United States v. Sutton, 962 F.3d 979, 984 (7th Cir. June 23, 2020). 4 No. 19 3517 with the understanding that the underlying drug offense re quired a minimum of four years’ supervised release. The government argued in response that, because Corner had completed his sentence for the crack conviction, he was not eligible for relief under the First Step Act with respect to the revocation sentence. Even if Corner were eligible, it ar gued, his repeated violations of the terms of his supervised release warranted the 18 months of reimprisonment and the additional 42 months’ supervision. The district court denied Corner’s motion. It first con cluded that deciding whether he was eligible for relief under the First Step Act was unnecessary because the court “would deny his request for a reduction” even if he was. The court cited Corner’s untruthfulness with his supervising probation officer, his refusal to comply with drug testing, his persistent use of illegal drugs, and his inability to hold down a job. These were the same grounds it had given for the revocation sen tence. Further, the court noted that the 18 month prison term was permissible because it did not exceed the new maximum revocation penalty of two years. Finally, the court, without further explanation, declined to reduce Corner’s new period of supervised release, but it said it would later consider a modification if his conduct on supervision warranted it. Corner completed his 18 month revocation sentence and began his 42 months of supervision in March 2020. On appeal, Corner argues that the district court committed reversible er ror by failing to decide his eligibility under the First Step Act before denying his motion for a reduced sentence. By omit ting that step, Corner asserts, the court failed to determine what lower statutory penalties would have applied to his original conviction if the Fair Sentencing Act had been in No. 19 3517 5 place, and therefore it had no baseline from which to exercise its new discretion. We conclude that a district court’s discre tionary determination whether to grant a petitioner’s motion for a reduced sentence under the First Step Act must be in formed by a calculation of the new sentencing parameters. Section 404 of the First Step Act provides that anyone who is eligible for relief under the Act can move for a reduced sen tence and directs district courts to consider the motion with reference to the statutory guidelines imposed by the Fair Sen tencing Act. From there, the court’s decision is discretionary; section 404(c) makes clear that the court is never required to reduce a sentence under section 404(b). What, procedure, if any, a court must follow before making that decision, is up for debate: Courts generally agree that plenary sentencing is not required, see United States v. Foreman, 958 F.3d 506, 510 (6th Cir. 2020) (collecting cases); several courts say that con sideration of the 18 U.S.C. § 3553(a) sentencing factors is ap propriate; see United States v. Shaw, 957 F.3d 734, 740 (7th Cir. 2020); United States v. Harris, 960 F.3d 1103, 1106 (8th Cir. 2020) (collecting cases); and some courts have determined that First Step Act decisions are reviewable for procedural and substantive reasonableness. See Foreman, 958 F.3d at 515; Harris, 960 F.3d at 1106–07. Few cases, however, discuss more generally how a district court should proceed when asked to reduce a sentence under section 404. Corner frames the issue on appeal as an “eligibility” ques tion, and the government follows suit, but eligibility is simply the gateway to resentencing under the First Step Act and is determined by “the statute of conviction alone.” Shaw, 957 F.3d at 739. The district court’s discretionary decision to grant or deny the request for a reduced sentence is the main event. 6 No. 19 3517 So the question here is less about determining eligibility than determining the consequences of eligibility—the new statutory penalties—and whether a district court can reasonably exer cise its discretion without doing so. The text of the First Step Act, however, suggests that it cannot. The statute contemplates a close review of resentencing motions: section 404(c) states that a person cannot seek relief under the Act more than once if the first motion was “denied after a complete review of the motion on the merits.” First Step Act § 404(c) (emphasis added); see also Shaw, 957 F.3d at 743; United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020). The requirement that a motion under § 404 receive a “complete review” suggests a baseline of process that includes an accu rate comparison of the statutory penalties—and any resulting change to the sentencing parameters—as they existed during the original sentencing and as they presently exist. “A resen tencing predicated on erroneous or expired guideline calcula tion,” or a decision to decline resentencing without consider ing at all the guidelines, “would seemingly run afoul of Con gressional expectations.” Boulding, 960 F.3d at 784. This is comparable to the procedural requirement that a district court correctly compute the applicable sentencing guidelines range before deciding, in its discretion, what sen tence to impose. See Gall v. United States, 552 U.S. 38, 51 (2007). Although a court can impose a sentence outside a properly calculated range, the guidelines “must be considered seri ously and applied carefully.” United States v. Lopez, 634 F.3d 948, 953 (7th Cir. 2011). And a failure to properly calculate and consider the guidelines amounts to a reversible proce dural error. United States v. Griffith, 913 F.3d 683, 687 (7th Cir. 2019). No. 19 3517 7 Not considering the lower statutory penalties now appli cable to Corner’s offense of conviction was procedural error for the same reason: the court decided what to do without first determining the parameters of what it could do. The court’s uninformed exercise of discretion, therefore, was divorced from the concerns underlying the Fair Sentencing Act (appli cable to Corner through the First Step Act), which sought to redress the extreme inequity between sentences for crack and powder cocaine offenses deemed irrational and unfair by Congress. The district court declined to entertain concerns about the fairness or equity of Corner’s revocation sentence, even though he already served a prison sentence that was, by current standards, substantially longer than necessary to pro mote the goals of sentencing. The government argues that, even if the district court erred by declining to consider the modified statutory penal ties, this court should nevertheless affirm because any error was harmless: the court would have imposed the same sen tence, and, in any event, Corner has now finished serving his revocation sentence. True, a procedural error (such as a mis calculation of the applicable guidelines range) is not reversi ble if it’s clear that the court did not rely on it when selecting the sentence. United States v. Snyder, 865 F.3d 490, 500 (7th Cir. 2017). In fact, we encourage district courts to exercise discre tion under § 3553(a) rather than impose a guidelines sentence when faced with a tricky and disputed guidelines calculation. See United States v. White, 883 F.3d 983, 987 (7th Cir. 2018). But we “must be sure that an alternate ruling is ‘not just a conclu sory comment tossed in for good measure,’ but rather re flected a ‘detailed explanation of the basis for the parallel re sult.’” Shaw, 957 F.3d at 740 (quoting United States v. Foster, 701 F.3d 1142, 1158 (7th Cir. 2012)). 8 No. 19 3517 The necessary explanation is lacking here. Rather than consider the penalties and then decide that the existing sen tence was nevertheless the best one, the court treated the new penalties as irrelevant. That is inconsistent with the statutory command to consider motions under section 404 “as if” the Fair Sentencing Act had applied at the time the original crime was committed. First Step Act § 404(b). In any case, the district court’s exercise of its discretion was unreasonable because it did not address Corner’s argu ment that he deserved a reduced sentence in light of the goals and policies of the First Step Act. In sticking with the original terms of reimprisonment and supervised release, it cited only the reasons it had given at the time it first selected them—be fore the First Step Act became effective. The sentence was based on parameters that no longer apply, but the district court did not analyze whether that sentence was still appro priate in light of the changed statutory penalties (and corre sponding effects on the sentencing guidelines) as the First Step Act requires. Such a barebones explanation amounts to no exercise of discretion at all. And a district court’s non ex ercise of discretion is itself an abuse of discretion. Dolin v. GlaxoSmithKline LLC, 951 F.3d 882, 889 (7th Cir. 2020). Congress afforded district courts wide discretion in the First Step Act context. But by not considering what reduced penalties would now apply to Corner’s offense, the district court fell short of the review envisioned by the Act. Corner has finished serving his revocation sentence, but his appeal is not moot because the court could still reduce his term of su pervised release. See Mont v. United States, 139 S. Ct. 1826, 1834 (2019); United States v. Sutton, 962 F.3d 979, 982 (7th Cir. No. 19 3517 9 June 23, 2020). We therefore VACATE the district court’s judgment and REMAND for further proceedings.
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