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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13030
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20511-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEWAYNE JOSEPH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 22, 2021)
Before JILL PRYOR, BRANCH and LAGOA, Circuit Judges.
PER CURIAM:
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Dewayne Joseph appeals the district court’s denial of his motion for a
sentence reduction under § 404 of the First Step Act of 2018, Pub. L. No. 115-391,
132 Stat. 5194, 5222. On appeal, he argues that the district court erred in
concluding that it lacked the authority to reduce his sentence under the Act. After
review, we vacate the denial of his motion and remand for further proceedings in
the district court.
I.
In July 2010, a federal grand jury charged Joseph with possession of a
firearm as a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (Count One);
possession with intent to distribute five grams or more of cocaine base, in violation
of
21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) (Count Two); and using and carrying a
firearm during and in relation to, and possessing a firearm in furtherance of, a drug
trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A) (Count Three). All the
charges arose from an incident that occurred on or about April 20, 2010.
Before trial, the government gave notice that it intended to seek an enhanced
penalty on Count Two because Joseph had two prior convictions for felony drug
offenses. At the time of Joseph’s offense, the statutory penalty range for an
offense involving five grams or more of cocaine base where the defendant had at
least one prior conviction for a felony drug offense was 10 years to life. See
21 U.S.C. § 841(b)(1)(B) (2010).
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Joseph proceeded to trial. At trial, the government introduced evidence
showing that officers observed Joseph drop items, which turned out to be a firearm
and a plastic bag containing “rock cocaine.” Doc. 81 at 156–57. 1 The government
introduced into evidence an exhibit consisting of the substance found in the bag.
Joseph stipulated that this exhibit consisted of 30.3 grams of a mixture and
substance containing a detectable amount of cocaine base. The jury returned a
verdict finding Joseph guilty on all three counts and that the drug offense involved
five grams or more of cocaine base.
Before sentencing, a probation officer prepared a presentence investigation
report (“PSR”). The PSR stated that Joseph’s controlled substance offense was
“Possession with intent to distribute five grams or more of cocaine base” and that
the statutory penalty range for this offense was “Ten years to life imprisonment.”
PSR at 2. The PSR applied the career-offender sentence enhancement and
calculated Joseph’s Sentencing Guidelines range as 360 months’ to life
imprisonment. In addition, the PSR found that Joseph was subject to a mandatory,
consecutive sentence of at least 60 months for Count Three. See
18 U.S.C.
§ 924(c)(1)(A)(i).
The district court held Joseph’s sentencing hearing in February 2011. At the
hearing, Joseph sought a substantial downward variance based on the sentencing
1
“Doc.” numbers refer to the district court’s docket entries.
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factors in
18 U.S.C. § 3553(a).2 In particular, he argued that a sentence within the
guidelines range would create unwarranted sentencing disparities because
sentences of 30 years or longer were imposed for defendants who led crime
organizations or were responsible for far greater quantities of drugs. He
maintained that a total sentence of 181 months, consisting of a 121-month sentence
for Counts One and Two and a consecutive 60-month sentence on Count Three,
was sufficient, but not greater than necessary, under § 3553(a).
While addressing the need to avoid unwarranted sentencing disparities,
Joseph’s counsel mentioned the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372. He noted that this statute had recently increased the amount of
cocaine base required to trigger the mandatory minimums. Joseph’s counsel
stated:
[T]he amount of narcotics involved in this case, 30 point something
grams, is by the weight of two paper clips away from a non-mandatory
minimum sentence. It’s been—the mandatory minimum now post—I
believe it’s August of 2010—is 28 grams. This is 30 grams. And even
though the minimum mandatory has been raised, I think everybody kind
2
Section § 3553(a) states that a court should “impose a sentence sufficient, but not
greater than necessary” to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, afford adequate deterrence to criminal conduct, protect
the public from further crimes of the defendant, and provide the defendant with needed
educational or vocational training.
18 U.S.C. § 3553(a)(2). In imposing a sentence, a court also
should consider: the nature and circumstances of the offense, the history and characteristics of
the defendant, the kinds of sentences available, the sentencing range established under the
Sentencing Guidelines, any pertinent policy statement issued by the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)–(7).
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of recognizes that . . . the crack cocaine ratio is still too high. It ought
to be one to one.
Doc. 87 at 12–13. After Joseph’s counsel made this statement, neither the
government nor the district court mentioned the Fair Sentencing Act.
After hearing from the parties about the § 3553(a) factors, the court awarded
Joseph a two-level offense-level reduction for acceptance of responsibility. Based
on this adjustment, the court calculated his guidelines range as 292 to 365 months’
imprisonment. The court then imposed a total sentence of 352 months’
imprisonment. This sentence consisted of 120 months on Count One3 and 292
months on Count Two, to run concurrently, followed by a mandatory consecutive
sentence of 60 months on Count Three. Joseph appealed his conviction and
sentence, and we affirmed. See United States v. Joseph, 445 F. App’x 301 (11th
Cir. 2011) (unpublished).
In 2019, Joseph filed a motion in the district court for a sentence reduction
under the newly enacted First Step Act. The district court denied Joseph’s motion.
Although the court found that Joseph’s drug conviction qualified as a “covered
offense” under the First Step Act, the court concluded that Joseph was “ineligible”
for a sentence reduction because his original sentence had been “imposed in
accordance” with the Fair Sentencing Act. Doc. 119 at 15–16 (alteration adopted)
3
The statutory maximum term of imprisonment for Count One was 10 years. See
18 U.S.C. § 924(a)(2).
5
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(internal quotation marks omitted). The court explained that the Fair Sentencing
Act had become effective on August 3, 2010, and Joseph was sentenced “more
than six months” later. Id. at 16. The district court cited the Supreme Court’s
decision in Dorsey v. United States,
567 U.S. 260 (2012), holding that the Fair
Sentencing Act applied to any defendant who was sentenced after its effective date.
The court also treated the statement from Joseph’s attorney at sentencing about the
Fair Sentence Act as showing that Joseph “was being sentenced under the newly-
enacted crack cocaine quantities established by the Fair Sentencing Act.” Doc.
119 at 16.
This is Joseph’s appeal.
II.
We review de novo whether a district court had authority to modify a term of
imprisonment under the First Step Act. United States v. Jones,
962 F.3d 1290,
1296 (11th Cir. 2020).
III.
Joseph argues that under the First Step Act he is eligible for a sentence
reduction because he had not already been sentenced in accordance with the Fair
Sentencing Act. We agree that the district court erred in concluding that Joseph
was ineligible for a sentence reduction.
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The Fair Sentencing Act amended
21 U.S.C. § 841(b)(1) to address the
disparities in sentences for offenses involving cocaine base versus powder cocaine.
See Dorsey,
567 U.S. at 269. Section 2 of the Fair Sentencing Act increased the
quantity of cocaine base necessary to trigger the highest statutory penalties from
50 grams to 280 grams, and the quantity of cocaine base necessary to trigger
intermediate statutory penalties from 5 grams to 28 grams. See Fair Sentencing
Act § 2. The Fair Sentencing Act was signed into law and became effective on
August 3, 2010.
We initially addressed the effective date of the Fair Sentencing Act in
United States v. Gomes, in which we said that the Fair Sentencing Act’s changes to
the drug quantity thresholds in § 841(b) applied only to defendants who committed
their crimes after the law’s effective date of August 3, 2010.
621 F.3d 1343, 1346
(11th Cir. 2010) (stating that the relevant inquiry was whether the defendant had
“committed his crimes” by August 3). The Supreme Court later disagreed with us,
holding that the Fair Sentencing Act’s changes to the drug quantity thresholds
applied to defendants who were sentenced after August 3, 2010, even if their
offense conduct occurred before the law’s effective date. See Dorsey,
567 U.S. at
264.
In 2018, Congress passed the First Step Act, permitting “district courts to
apply retroactively the reduced statutory penalties for crack-cocaine offenses in the
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Fair Sentencing Act of 2010.” Jones, 962 F.3d at 1293; see First Step Act § 404.
Section 404 of the First Step Act authorizes a district court “that imposed a
sentence for a covered offense” to “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.” First Step Act § 404(b). Covered offenses are those that “triggered a
statutory penalty that has since been modified by the Fair Sentencing Act.” Jones,
962 F.3d at 1298; see First Step Act § 404(a).
A district court may not “entertain a motion” for a sentence reduction under
the First Step Act “if the sentence was previously imposed . . . in accordance with
the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010.”
First Step Act § 404(c). We have not previously addressed in a published opinion
what it means for a sentence to be imposed “in accordance with . . . sections 2 and
3 of the Fair Sentencing Act,” but the parties agree that a movant is ineligible for a
sentence reduction under § 404(c) if the “Fair Sentencing Act’s thresholds were
applied at [his] original sentencing.” Appellee’s Br. at 13; see also Appellant’s Br.
at 8 (framing inquiry as whether the district court applied the Fair Sentencing Act’s
reduced penalties at the original sentencing). 4 Given the parties’ agreement, we
4
The parties’ interpretation appears consistent with the ordinary meaning of the phrase
“in accordance with.” To determine the common usage or ordinary meaning of a term in a
statute, “we often look to dictionary definitions for guidance.” In re Walter Energy, Inc.,
911 F.3d 1121, 1143 (11th Cir. 2018). Dictionary definitions confirm that the ordinary meaning
of the phrase “in accordance with” is “in conformity to” or “according to.” Accordance, The
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assume without deciding that a movant is ineligible for a sentence reduction under
§ 404(c) when the Fair Sentencing Act’s drug quantity thresholds were applied at
his original sentencing.
We conclude that the district court erred in ruling that Joseph was ineligible
for a sentence reduction because the Fair Sentencing Act’s thresholds were applied
at his original sentencing. At the time Joseph was sentenced, we had decided in
Gomes that the Fair Sentencing Act’s quantity thresholds applied only to
defendants who committed their crimes after the Fair Sentencing Act was signed
into law in August 2010. See
621 F.3d at 1346. As a result, at the time of Joseph’s
sentencing, the district court and the parties would have understood that the Fair
Sentencing Act did not apply to Joseph because he committed his offense in April
2010, several months before the Fair Sentencing Act was signed into law.
The district court nonetheless determined that Joseph was sentenced
according to the Fair Sentencing Act because the Supreme Court later held,
contrary to our decision in Gomes, that the Fair Sentencing Act applied to any
defendant who was sentenced after its effective date. See Dorsey,
567 U.S. at 264.
Certainly, Dorsey abrogated our decision in Gomes. But Dorsey was decided in
2012—after Joseph’s sentencing and, indeed, after his appeal had become final.
Oxford English Dictionary (online ed.) (last accessed Jan. 22, 2021). The parties’ approach of
asking whether the Fair Sentencing Act’s thresholds were applied at Joseph’s sentencing hearing
is thus consistent with the ordinary meaning of the statute’s text.
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Given this timing, we cannot rely on Dorsey to conclude that the district court
applied the Fair Sentencing Act’s drug quantity thresholds at Joseph’s original
sentencing.
Besides the Supreme Court’s decision in Dorsey, the district court relied on
Joseph’s counsel’s reference to the Fair Sentencing Act at the sentencing hearing
to show that the sentencing court had applied the Act’s drug quantity thresholds. It
is true that in arguing for a substantial downward variance from the guidelines
range of 360 months’ to life imprisonment to a sentence of 121 months’
imprisonment on the controlled substances offense, Joseph’s counsel mentioned
the Fair Sentencing Act. Counsel compared the quantity of drugs involved in
Joseph’s offense (30.3 grams) to the quantity of cocaine base required to trigger
§ 841(b)(1)(B)’s intermediate penalties under the Fair Sentencing Act (28 grams).
From the record, however, it is not at all clear that this statement reflected
Joseph’s counsel’s understanding, much less the district court’s, that the Fair
Sentencing Act actually applied to Joseph. Instead, it appears Joseph’s counsel
was arguing that there was an unwarranted sentencing disparity—a § 3553(a)
factor—by pointing out that a hypothetical defendant whose offense occurred only
a few months after Joseph’s and whose conduct involved only a slightly smaller
amount of cocaine base would have been sentenced under the new quantity
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thresholds of the Fair Sentencing Act and would have faced no mandatory
minimum.5
But even if Joseph’s counsel had made an argument that the Fair Sentencing
Act applied to Joseph, we still could not say on the record before us that the district
court applied the Fair Sentencing Act’s drug quantity thresholds at sentencing.
After Joseph’s counsel referred to the Fair Sentencing Act, the district court gave
no indication that it believed the Fair Sentencing Act applied to Joseph.6 And the
district court’s judgment listed the offense in Count Two as “Possession with intent
to distribute five grams or more of cocaine base.” Doc. 67 at 1. This language,
which matched the indictment and jury’s verdict, indicates that the district court
understood it was sentencing Joseph under the pre-Fair Sentencing Act statutory
scheme, in which a drug quantity of five grams of cocaine base was sufficient to
trigger § 841(b)(2)’s intermediate penalties. Because the record does not reflect
that the Fair Sentencing Act drug quantity thresholds were used at Joseph’s
5
In evaluating sentencing disparities, a district court must consider the “cliffs” that are
created when an offense involving a particular quantity of a controlled substance is subject to a
mandatory minimum under § 841(b) but another offense involving a slightly smaller quantity of
the same controlled substance is subject to no mandatory minimum. See Kimbrough v. United
States,
552 U.S. 85, 108 (2007).
6
We also note that the district court judge who denied Joseph’s motion for a sentence
reduction was not the same judge who sentenced Joseph. As a result, we are not presented with a
situation where the district court judge who sentenced Joseph was telling us in the denial of the
motion for a sentence reduction what that same judge understood about the earlier sentencing
proceedings.
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original sentencing, we conclude that the district court erred in ruling that Joseph
was ineligible for a sentence reduction under § 404(c) of the First Step Act.7
The First Step Act imposes other requirements for a movant to be eligible
for a sentence reduction, including that the movant must have a “covered offense”
and must not have already received the “lowest statutory penalty that also would be
available to him under the Fair Sentencing Act.” Jones, 962 F.3d at 1303. Here,
though, the government concedes, and we agree, that Joseph had a covered offense
and that his current sentence is not the lowest statutory penalty available under the
Fair Sentencing Act. 8 we conclude that Joseph is eligible for a sentence reduction
under the First Step Act, we vacate the district court’s order denying his motion for
a sentence reduction and remand to the district court so that it can consider whether
7
In saying that Joseph had been sentenced pursuant to the Fair Sentencing Act, the
district court appears to have made a finding about a “historical fact,” a determination that we
generally review for clear error. See Beeman v. United States,
871 F.3d 1215, 1224 n.5 (11th
Cir. 2017). We need not definitively decide whether we review for clear error a district court’s
determination that a movant was sentenced under the Fair Sentencing Act because even
assuming that we review this determination only for clear error, our conclusion would remain the
same. “[A]fter reviewing all the evidence, we are left with the definite and firm conviction that a
mistake has been committed” by the district court in finding that Joseph was sentenced under the
Fair Sentencing Act. United States v. Alicea,
875 F.3d 606, 608 (11th Cir. 2017) (internal
quotation marks omitted).
8
The government urges us to instruct the district court that on remand it must use the
drug quantity stipulated at trial (30.3 grams)—not the drug quantity found by the jury (5
grams)—for purposes of calculating what Joseph’s penalty range would have been under the Fair
Sentencing Act and thus the career offender guideline. Because we need not decide this question
to resolve this appeal, however, we do not address it.
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to exercise its discretionary authority under the First Step Act to reduce Joseph’s
sentence.
VACATED AND REMANDED.
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