USA v. Pierre Dawson, No. 22-1050 (7th Cir. 2023)

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted January 19, 2023* Decided January 20, 2023 Before FRANK H. EASTERBROOK, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge JOHN Z. LEE, Circuit Judge No. 22-1050 UNITED STATES OF AMERICA, Plaintiff-Appellee, Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. v. No. 02 CR 688 PIERRE DAWSON, Defendant-Appellant. Elaine E. Bucklo, Judge. ORDER Pierre Dawson appeals the denial of his motion for a sentence reduction under Section 404(b) of the First Step Act. The district court determined that he was ineligible for a reduction based on his powder-cocaine convictions. Dawson argues that the court erred in finding him ineligible because, although he was convicted only for powderWe have agreed to decide the case without oral argument because the appellant’s brief and the record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C). * No. 22-1050 Page 2 cocaine offenses, he was also held responsible for crack cocaine at sentencing. But eligibility under the Act is determined by the defendant’s statute of conviction, and so we affirm. In 2004, a jury convicted Dawson of two counts for conspiring to distribute large quantities of powder cocaine, 21 U.S.C. §§ 841(a)(1), 846. In applying the Sentencing Guidelines, the district court held Dawson responsible for 90 kilograms of crack cocaine, in addition to the powder cocaine that led to his conviction. The court sentenced him to 360 months’ imprisonment. We affirmed Dawson’s sentence, and Dawson’s later motions for collateral relief under 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2) were unsuccessful. Almost 20 years later, Dawson moved to reduce his sentence under Section 404(b) of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The Act allows district courts to reduce defendants’ sentences for crack-cocaine convictions “as if” provisions of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, regarding crack cocaine “were in effect at the time the covered offense was committed.” District courts review motions for reduced sentences under § 404(b) of the First Step Act in two steps. The resentencing court first determines whether the moving defendant is eligible for a sentence reduction. United States v. Clay, 50 F.4th 608, 611 (7th Cir. 2022). If so, the court then decides whether it should reduce the defendant’s sentence. Id. The district court denied Dawson’s motion at step one, citing United States v. Shaw, 957 F.3d 734, 735 (7th Cir. 2020), in which we held that a court determining eligibility “needs to look only at a defendant’s statute of conviction.” Because Dawson was convicted of two offenses involving powder cocaine, the statutory penalties for which were not modified by the Fair Sentencing Act, the court determined that he was ineligible. On appeal, Dawson acknowledges that he was convicted of only powder-cocaine offenses and that those convictions do not make him eligible for a sentence reduction. Still, he argues that he is eligible because, in applying the advisory Sentencing Guidelines (which included conduct related to the crime of conviction) the district judge held him responsible for trafficking crack cocaine. But eligibility is based “only” on his “statute of conviction.” Shaw, 957 F.3d at 735. Thus, Dawson is ineligible. Dawson alternatively argues that Shaw no longer applies because it conflicts with the Supreme Court’s recent decision in Concepcion v. United States, 142 S. Ct. 2389 (2022). We disagree. The petitioner in Concepcion pleaded guilty to a crack-cocaine offense and was eligible for a sentence reduction. Id. at 2396–97. The issue before the Court was the No. 22-1050 Page 3 scope of what resentencing judges could consider in ruling on First Step Act motions brought by defendants who are eligible for a reduction, see United States v. King, 40 F.4th 594, 595–96 (7th Cir. 2022), not whether a movant is eligible for a sentence reduction in the first instance. To be eligible, a movant must—like the defendant in Concepcion, but unlike Dawson—have been convicted of a “covered offense.” See First Step Act, § 404(a). Because Concepcion left Shaw intact, Dawson’s appeal is foreclosed. AFFIRMED

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