United States v. Ellis ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 2, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-7006
(D.C. No. 6:05-CR-00053-RAW-1)
MARCUS TARIN ELLIS, (E.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.**
_________________________________
Defendant Marcus Tarin Ellis is serving concurrent sentences on a pair of
federal drug offenses. To remedy that predicament, he moved the district court to
reduce his sentence pursuant to the First Step Act of 2018. The district court
dismissed Defendant’s motion for lack of jurisdiction, and, exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
I.
In 2005, a jury convicted Defendant on two federal drug charges. First, for
conspiracy to possess with intent to distribute and distribution of cocaine, cocaine
base (“crack”), and methamphetamine, in violation of 21 U.S.C. § 846. Doc. 57.1
And second, for possession with intent to distribute and distribution of
methamphetamine, in violation of §§ 841(a)(1) and 841(b)(1)(B)(viii) (providing the
statutory penalty range for a violation of (a)(1) involving 5 grams or more of meth).
Id. The district court sentenced Defendant to a term of 361 months’ imprisonment on
each count, to run concurrently. Id. We affirmed both convictions and both
sentences on direct appeal. United States v. Ellis, 193 F. App’x. 773 (10th Cir.
2006).
In 2007, Defendant moved for relief under 28 U.S.C. § 2255 arguing
ineffective assistance of counsel. Doc. 71. The district court denied that motion by
docket text order, and we affirmed. United States v. Ellis, 298 F. App’x 752 (10th
Cir. 2008). The next year, Defendant moved for a reduction in his sentence under 18
U.S.C. § 3582(c)(2) because the Sentencing Commission reduced the guidelines
range for his crimes. Doc. 73. The district court granted the motion and adjusted
1
Defendant failed to include some of the relevant documents from the district
court in the record on appeal. Because he is proceeding pro se, we act on our
authority to take judicial notice of the district court filings. See Bunn v. Perdue, 966
F.3d 1094, 1096 n.4 (10th Cir. 2020). We draw the factual and procedural
background of this case from the district court docket and documents filed thereon.
Thus, we format citations to documents on the district court docket as “Doc. [docket
entry number(s)].”
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Defendant’s sentences to 336 months’ imprisonment each. Doc. 77. We affirmed
that decision as well. United States v. Ellis, 332 F. App’x 471 (10th Cir. 2009). In
2012, Defendant again moved for a reduction under § 3582(c)(2), but the district
court denied relief. Docs. 86, 89. Defendant brought his final § 3582(c)(2) motion in
2015, which the district court granted, reducing Defendant’s sentences to 262
months’ imprisonment each. Docs. 98, 100.
Meanwhile, Congress passed the Fair Sentencing Act of 2010, which adjusted
the amounts of “crack” cocaine necessary to trigger certain statutory penalties in 21
U.S.C. § 841(b). Dorsey v. United States, 567 U.S. 260, 268–69 (2012). That act
sought to remedy the vast disparity in sentences for defendants whose crimes
involved crack and those whose crimes involved powder cocaine. Id. The new
scheme only applied, however, to defendants sentenced after August 3, 2010. Id. at
281–82. Congress later made the Fair Sentencing Act’s provisions retroactively
applicable to certain defendants sentenced before that date via the First Step Act of
2018. United States v. Mannie, 971 F.3d 1145, 1148–49 (10th Cir. 2020). Believing
himself eligible for relief under the First Step Act, Defendant filed a motion to that
effect in 2019. Doc. 107. The district court dismissed Defendant’s motion for lack
of jurisdiction, Doc. 112, and Defendant appealed.
II.
Generally, we review the grant or denial of a First Step Act motion for abuse
of discretion. Mannie, 971 F.3d at 1155. This case, however, presents a
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jurisdictional question, which we review de novo. See United States v. Baker, 769
F.3d 1196, 1198 (10th Cir. 2014).
III.
Federal courts, being courts of limited jurisdiction, must always be sure of
their own subject-matter jurisdiction, including that the party seeking relief has
standing. Navajo Nation v. Dalley, 896 F.3d 1196, 1203 (10th Cir. 2018). Standing,
as an essential part of Article III’s “case and controversy” requirement, is a
fundamental limitation on the federal courts’ constitutionally granted jurisdiction.
See Mannie, 971 F.3d at 1152. A district court may “modify a defendant’s sentence
only in specified instances where Congress has expressly granted the court
jurisdiction to do so.” Id. at 1151 (quoting Baker, 769 F.3d at 1198). So a defendant
who moves a federal district court to modify his sentence must convince the district
court that it possesses both constitutional and statutory jurisdiction over his motion.
The district court convicted and sentenced Defendant on two counts. One for
conspiracy involving several drugs, including “crack” cocaine, in violation of 21
U.S.C. § 846. And one for possession with intent to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). Because Defendant is not
eligible for a reduction in his sentence for the second count under the First Step Act,
the district court lacked statutory jurisdiction to reduce that sentence. Contra
Mannie, 971 F.3d at 1151–52. Defendant’s two sentences run concurrently. Thus,
his total time of imprisonment would remain unchanged even if he received a
reduction of his sentence for count one. As a result, Defendant lacks standing to
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bring a First Step Act motion and the district court lacked constitutional jurisdiction
to consider his motion.
A.
Congress has granted that a district court “may modify an imposed term of
imprisonment to the extent [] expressly permitted by statute.” 18 U.S.C.
§ 3582(c)(1)(B). The Fair Sentencing Act of 2010 and the First Step Act of 2018 are
two such statutes. Mannie, 971 F.3d at 1148. The First Step Act provides standards
for determining which defendants are eligible for a reduced sentence and for
determining how to calculate the reduction:
(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.
...
First Step Act of 2018, Pub L. 115–391, § 404, 132 Stat. 5194, 5222.
Whether § 404(a) considers count two a “covered offense” turns on which
“violation[s] of a Federal criminal statute” §§ 2 and 3 of the Fair Sentencing Act
modified. Relevant here, the Fair Sentencing Act provides:
(a) CSA.—Section 401(b)(1) of the Controlled Substances Act (21 U.S.C.
841(b)(1)) is amended—
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(1) in subparagraph (A)(iii), by striking “50 grams” and inserting
“280 grams”; and
(2) in subparagraph (B)(iii), by striking “5 grams” and inserting “28
grams”.
...
Fair Sentencing Act of 2010, Pub. L. 111–220 § 2, 124 Stat. 2372, 2372. So, a “covered
offense” is one for which 21 U.S.C. § 841(b)(1)(A)(iii) or (B)(iii) sets the statutory
penalty range. See Mannie, 971 F.3d at 1152. See also United States v. Jones, 962 F.3d
1290, 1300–01 (11th Cir. 2020). But § 841(b)(1)(B)(viii) sets the statutory penalty range
for Defendant’s conviction on count two. The First Step Act, then, does not cover that
offense, making Defendant ineligible for a reduction of that sentence under the First Step
Act. Contra Mannie, 971 F.3d at 1152. Thus, Congress has not, via the First Step Act at
least, expressly granted jurisdiction to reduce Defendant’s sentence on count two.
B.
We now turn to standing. “Constitutional standing has three requirements:
injury in fact, traceability, and redressability.” Mannie, 971 F.3d at 1152–53. “An
offender who challenges his conviction or his sentence has standing to do so because
‘the ongoing incarceration constitutes an injury from which the defendant seeks
relief . . . .’” Id. at 1153 (quoting United States v. Meyers, 200 F.3d 715, 718 (10th
Cir. 2000)). “Because the only injury that can be alleged in a [First Step Act] motion
is the ongoing incarceration, the offender only has standing to bring a [First Step Act]
motion to the extent that the court could redress the offender’s ongoing
incarceration.” Id. “Put simply, if reducing an offender’s sentence under the [First
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Step Act] does not have the effect of actually reducing the offender’s length of
incarceration, then the court cannot redress the offender’s injury under the [First Step
Act].” Id. “If the court cannot redress the offender’s injury, then the offender does
not have standing, a live controversy is not present, and the court does not have
jurisdiction.” Id.The Sentencing Commission reduced the guideline sentence range for
Defendant’s crimes, and the district court adjusted Defendant’s sentences to the
bottom of that new range. Thus, the district court has exhausted its authority to
reduce Defendant’s sentences pursuant to § 3582(c)(2). See Mannie, 971 F.3d at
1153–54. And count two is not a “covered offense” for the First Step Act. So the
district court lacked authority under either § 3582(c)(1)(B) or (c)(2) to reduce
Defendant’s sentence for count two. See id.
Because Defendant’s sentences run concurrently with each other and this
proceeding cannot change his sentence for count two, any reduction of Defendant’s
sentence for count one would not reduce his actual length of incarceration. See id.
Therefore, the district court could not redress Defendant’s injury, Defendant lacked
standing, and the district court lacked constitutional jurisdiction. See id.
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Accordingly, the district court properly dismissed Defendant’s motion.2
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
2
In addition, Defendant’s argument that the district court should have held a
hearing on his First Step Act motion lacks merit because whether to hold a hearing
“fall[s] within the inherent authority of the district court to administer its own
docket.” Mannie, 971 F.3d at 1157. Because the district court rightly determined,
based on the papers, that it did not possess jurisdiction over Defendant’s motion, it
did not abuse its discretion by declining to hold a hearing.
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