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UNITED STATES v. FORD (2021)

United States Court of Appeals, Eleventh Circuit.2021-05-26No. No. 20-11126

Summary

Holding. The court affirmed the district court's denial of Ford's motion for a sentence reduction under Section 404 of the First Step Act because, although his offense qualified as covered, the Fair Sentencing Act's amendments did not change the mandatory life penalty applicable to his powder-cocaine quantity, leaving the lowest available penalty unchanged.

Tony Ford was convicted in 2005 of drug conspiracy and distribution offenses involving both powder and crack cocaine, along with firearm possession. He received a mandatory life sentence based on his prior felony drug convictions and the quantity of powder cocaine involved. In 2019, Ford sought a sentence reduction under Section 404 of the First Step Act, which allows courts to apply retroactively the reduced crack-cocaine penalties from the 2010 Fair Sentencing Act. The district court denied his request, finding him ineligible because the Fair Sentencing Act did not change the statutory penalties for powder cocaine offenses, meaning his life sentence would remain mandatory even under the Fair Sentencing Act's framework.

The appellate court affirmed the denial. Although Ford's offense qualified as a "covered offense" under the First Step Act because the crack-cocaine quantity in his conspiracy charge triggered enhanced penalties, the court concluded that no sentence reduction was available. Under the "as if" language of the statute, a district court cannot reduce a sentence when the movant would receive the same lowest statutory penalty under the Fair Sentencing Act as originally imposed. Since the five-kilogram powder-cocaine finding made a life sentence mandatory both before and after the Fair Sentencing Act, Ford remained ineligible for relief. The court stressed that Section 404 limits judicial authority to applying only the Fair Sentencing Act's specific changes and does not permit broader resentencing based on subsequent legal developments.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether Ford's offense qualifies as a 'covered offense' under the First Step Act
  • Whether a sentence reduction is available when the statutory penalty would remain unchanged under the Fair Sentencing Act
  • The scope of judicial authority to resentence under Section 404's 'as if' language
  • Application of the Fair Sentencing Act to multi-drug conspiracy offenses involving both crack and powder cocaine

Procedural posture

Ford appealed the district court's denial of his motion for sentence reduction under the First Step Act and his motion for reconsideration of that denial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

Tony Ford appeals the district courts orders (1) denying his motion for a sentence reduction under section 404 of the First Step Act of 2018

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and (2) denying his motion for reconsideration of that denial. No reversible error has been shown; we affirm.

In 2005, a jury found Ford guilty of (1) conspiracy to possess with intent to distribute 5 kilograms or more of powder cocaine and 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and (iii), 846 (Count 1); (2) 5 counts of possession with intent to distribute and distribution of cocaine and crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C) (Counts 2, 4, 5, 6, 7); and (3) possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 11).

The Presentence Investigation Report (“PSI”) calculated Fords base offense level as 38, based on the quantity of drugs involved in Fords offenses. The PSI applied a four-level enhancement for Fords leadership role in the offense. The PSI also designated Ford as a career offender -- under U.S.S.G. § 4B1.1 -- because Ford had two prior felony convictions for controlled-substance offenses. Based on the resulting total offense level of 42 and on a criminal history category of VI, Fords advisory guidelines range was 360 months to life imprisonment.

Ford, however, also qualified for enhanced statutory penalties -- under 21 U.S.C. §§ 841(b) and 851 -- based on his two prior felony drug convictions. In pertinent part, Ford was subject to a statutory mandatory sentence of life imprisonment on Count 1. As a result, Fords guidelines range also became life imprisonment under U.S.S.G. § 5G1.1(c)(2).

The district court sentenced Ford to (1) life imprisonment on Count 1; (2) 360 months’ imprisonment on each of Counts 2, 4, 5, 6, and 7; and (3) 120 months’ imprisonment on Count 11, all to run concurrently.

In March 2019, Ford -- through his lawyer -- moved to reduce his sentences pursuant to Section 404 of the First Step Act.

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The district court denied Fords motion in March 2020. The district court concluded that Ford was ineligible for a reduced sentence because -- given the 5 kilograms of powder cocaine involved in Count 1 -- Ford remained subject to a mandatory sentence of life imprisonment. The district court later denied Fords motion to reconsider that denial.

We review de novo whether a district court had the authority to modify a term of imprisonment under the First Step Act. See United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). “We review for abuse of discretion the denial of an eligible movants request for a reduced sentence under the First Step Act.” Id.

The First Step Act “permits district courts to apply retroactively the reduced statutory penalties for crack-cocaine offenses in the Fair Sentencing Act of 2010 to movants sentenced before those penalties became effective.” Id. at 1293. Under section 404(b) of the First Step Act, “a district court that imposed a sentence for a covered offense [may] impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act were in effect at the time the covered offense was committed.” Id. at 1297 (quotations and alterations omitted).

To be eligible for a reduction under section 404(b), a movant must have been sentenced for a “covered offense” as defined in section 404(a). Id. at 1298. We have said that a movant has committed a “covered offense” if the movants offense triggered the higher statutory penalties for crack-cocaine offenses in 21 U.S.C. § 841(b)(1)(A)(iii) or (B)(iii): penalties that were later modified by the Fair Sentencing Act. See id. A multi-drug conspiracy offense involving both crack cocaine and another controlled substance constitutes a “covered offense” as long as the quantity of crack cocaine triggered an increased statutory penalty. See United States v. Taylor, 982 F.3d 1295, 1300 (11th Cir. 2020).

In determining whether a movant has a “covered offense” under the First Step Act, the district court “must consult the record, including the movants charging document, the jury verdict or guilty plea, the sentencing record, and the final judgment.” Jones, 962 F.3d at 1300-01. The pertinent question is whether the movants conduct satisfied the drug-quantity element in sections 841(b)(1)(A)(iii) (50 grams or more of crack cocaine) or 841(b)(1)(B)(iii) (5 grams or more of crack cocaine) and subjected the movant to the statutory penalties in those subsections. Id. at 1301-02. If so -- and if the offense was committed before 3 August 2010 (the effective date of the Fair Sentencing Act) -- then the movants offense is a “covered offense,” and the district court may reduce the movants sentence “as if” the applicable provisions of the Fair Sentencing Act “were in effect at the time the covered offense was committed.” See First Step Act § 404(b); Jones, 962 F.3d at 1301, 1303.

Here, the quantity of crack cocaine involved in Fords multi-drug conspiracy offense in Count 1 -- which the jury found was 50 grams or more -- triggered the enhanced statutory penalties in section 841(b)(1)(A)(iii). Because Fords drug conspiracy offense in Count 1 was committed before 3 August 2010, his offense qualifies as a “covered offense” under the First Step Act.

Having concluded that Ford satisfied the “covered offense” requirement, we next consider whether a sentence reduction was available. We have said that the “as if” qualifier in section 404(b) of the First Step Act imposes two limitations on the district courts authority to reduce a sentence under the First Step Act. See Jones, 962 F.3d at 1303. First, the district court cannot reduce a sentence where the movant “received the lowest statutory penalty that also would be available to him under the Fair Sentencing Act.” Id. “Second, in determining what a movants statutory penalty would be under the Fair Sentencing Act, the district court is bound by a previous finding of drug quantity that could have been used to determine the movants statutory penalty at the time of sentencing.” Id. In other words, a district court lacks the authority to reduce a movants sentence when the sentence would necessarily remain the same under the Fair Sentencing Act. See id.

Applying these limitations, the district court had no authority under the First Step Act to reduce Fords life sentence. The Fair Sentencing Act amended only the statutory penalties applicable to offenses involving crack cocaine; the statutory penalties applicable to offenses involving powder cocaine remained unchanged. Both before and after passage of the Fair Sentencing Act, section 841(b)(1)(A)(ii) imposed a mandatory life sentence for offenses involving five kilograms or more of powder cocaine committed by defendants with two or more prior felony drug convictions. Compare 21 U.S.C. § 841(b)(1)(A)(ii) (2009), with id. § 841(b)(1)(A)(ii) (2010).

Based on Fords two prior felony drug convictions and the jurys finding that Ford was responsible for 5 kilograms of powder cocaine, Fords sentence of life imprisonment is still the lowest possible penalty that would be available to him under the Fair Sentencing Act.

That Ford might be subject to a lower statutory mandatory sentence under the most recent version of section 841(b)(1)(A) is immaterial. In ruling on a defendants motion under section 404 of the First Step Act, a district court has limited authority to reduce a sentence “as if” sections 2 and 3 of the Fair Sentencing Act were in effect. A district court “is not free ․ to reduce the defendants sentence on the covered offense based on changes in the law beyond those mandated by sections 2 and 3.” United States v. Denson, 963 F.3d 1080, 1089 (11th Cir. 2020) (emphasis added). “[T]he First Step Act does not authorize the district court to conduct a plenary or de novo resentencing.” Id.

We affirm the district courts determination that Ford was ineligible for a reduced sentence under the First Step Act. We also affirm the district courts denial of Fords motion for reconsideration of that denial.

AFFIRMED.

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FOOTNOTES

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.   First Step Act of 2018, Pub. L. 115-391, § 404(b), 132 Stat. 5194, 5222.

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.   Only Fords life sentence on Count 1 is at issue in this appeal.

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.   To the extent Ford contends that our decisions in Jones and in Denson are wrongly decided, we must decline to consider those arguments in this appeal. See United States v. Johnson, 981 F.3d 1171, 1192 (11th Cir. 2020) (“Under our prior precedent rule, we must follow the precedent of earlier panels unless and until the prior precedent is overruled or undermined to the point of abrogation by the Supreme Court or this Court sitting en banc.”).

PER CURIAM: