United States v. Darryl Coleman ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1381
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UNITED STATES OF AMERICA
v.
DARRYL E. COLEMAN, a/k/a T, a/k/a Tubbs, a/k/a D,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-96-cr-00539-001)
District Judge: Hon. Harvey Bartle, III
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Argued on November 16, 2022
Before: HARDIMAN, PORTER, and FISHER, Circuit
Judges.
(Filed: April 20, 2023)
Jacquelyne K. Phelps [Argued]
The Decarceration Collective
2045 North Biscayne Boulevard
Suite 282
Miami, FL 33137
Counsel for Appellant
Jacqueline C. Romero
Bernadette A. McKeon
Robert A. Zauzmer [Argued]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Darryl Coleman appeals an order of the District Court
denying his motion for a sentence reduction. He claims the
Court clearly erred in determining his statute of conviction and
erred in concluding that he was not convicted of a “covered
offense” under § 404(a) of the First Step Act of 2018. For the
reasons that follow, we will vacate the District Court’s order
and remand for further proceedings.
I
Coleman was indicted in 1997 for supervising a
conspiracy to distribute cocaine in violation of 21 U.S.C.
§§ 846 and 841(a)(1). A jury found Coleman guilty, and he was
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sentenced to life imprisonment. Coleman was sentenced before
the Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466 (2000), so the District Court did not specify which
provision of 21 U.S.C. § 841(b) grounded his conviction and
sentence. Coleman appealed, and we affirmed without
comment. United States v. Coleman, 191 F.3d 446 (3d Cir.
1999) (table).
After unsuccessfully seeking habeas relief and a
sentence reduction under amendments to the Sentencing
Guidelines, Coleman filed a motion for a reduced sentence
under § 404(b) of the First Step Act, Pub. L. No. 115-391, 132Stat. 5194, 5222 (2018). He claimed he had been sentenced for
a “dual-object conspiracy involving both crack and powder
cocaine,” which he asserted was a “covered offense” under
§ 404(a) of the First Step Act. App. 189. Noting that the record
does not specify the statutory penalty provision under which
he was convicted and sentenced, Coleman argued that he was
sentenced in part for crack-related conduct. The Government
opposed the motion, arguing that Coleman was ineligible for
§ 404(b) relief because he was not convicted of a crack offense.
The District Court denied Coleman’s motion. It
acknowledged the record’s various references to crack, as well
as the fact that Coleman was found “responsible for 1.5
kilograms of crack cocaine at his sentencing,” but concluded
that Coleman was ineligible for § 404(b) relief because he
“was not . . . convicted of an offense involving crack cocaine.”
App. 15 (emphasis added).
Coleman timely appealed.
3
II1
We review de novo whether a movant is eligible for
§ 404(b) relief. United States v. Jackson, 964 F.3d 197, 201 (3d
Cir. 2020). Coleman’s eligibility turns on whether he was
convicted of a “covered offense,” which we have held means
his “statute of conviction.” Id. at 202.
The District Court did not determine Coleman’s statute
of conviction explicitly. Still, we agree with the parties—and
we hold—that the District Court’s determination of Coleman’s
statute of conviction is subject to review only for clear error.
Our decision to apply clear error follows from our
recent decision in United States v. Bentley, 49 F.4th 275 (3d
Cir. 2022). There, the district court adjudicated a post-
conviction sentencing motion by reviewing the “records of the
convicting court” to conclude that Bentley was convicted
under one statutory subsection rather than another. Id. at 282,
291. Coleman too has filed a post-conviction sentencing
motion. And as we explain in section III.B, resolving his
motion required the District Court to review the “records of the
convicting court” to determine which statutory subsection
defined his conviction. See Coleman Br. 15 (noting that 21
U.S.C. § 841(b)(1)(A)(ii), (b)(1)(A)(iii), or both grounded
Coleman’s conviction).
Though the district court in Bentley looked to a state
court’s proceedings rather than, as here, its own prior
proceedings, that distinction makes no difference. The
1
The District Court had jurisdiction under 18 U.S.C. §§ 3231and 3582(c)(1)(B). Our jurisdiction arises under 28 U.S.C.
§ 1291.
4
statutory penalty provision that grounded Coleman’s
sentence—and completed his statute of conviction—is a
juridical fact here as in Bentley. In both cases the sentencing
court reviewed an ambiguous record to find a fact (the relevant
statutory subsection constituting the statute of conviction).
And in the face of “records . . . not free from ambiguity,” a
“plausible” factual determination of the movant’s statute of
conviction “must govern.” Bentley, 49 F.4th at 291.
III
Section 404(b) of the First Step Act authorizes courts to
reduce sentences for “covered offense[s]” committed before
the Fair Sentencing Act of 2010 was enacted. 132 Stat. at 5222.
A “covered offense” is “a violation of a Federal criminal
statute, the statutory penalties for which were modified by
section 2 or 3 of the Fair Sentencing Act.” Id. (§ 404(a)). As
we held in Jackson, this violation refers to a defendant’s
“statute of conviction,” not his conduct in committing the
offense. 964 F.3d at 202. We therefore determine eligibility for
§ 404(b) relief by looking only to the statutory elements of the
crime of conviction. Id. at 202 n.6. The statute of conviction
for a § 841(a)(1) violation—and a § 846 violation based on
§ 841—is the “combination of” § 841(a)(1) and a § 841(b)
penalty provision. United States v. Birt, 966 F.3d 257, 261–62
(3d Cir. 2020).
Coleman’s violation of the conspiracy statute subjects
him to the “same penalties as those prescribed for” the
predicate offense. 21 U.S.C. § 846. So Coleman is eligible for
a sentence reduction under § 404(b) of the First Step Act only
if his statute of conviction included a § 841(b) penalty
provision modified by the Fair Sentencing Act. Since
Coleman’s trial and sentencing record does not identify a
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penalty provision, the District Court had to determine
Coleman’s statute of conviction.
A
The Government invites us to gauge Coleman’s § 404
eligibility by looking solely to the charging language in the
indictment. We reject that invitation for pre-Apprendi cases
like Coleman’s.
An indictment must set forth each element of the crimes
it charges. Almendarez-Torres v. United States, 523 U.S. 224,
228 (1998). Because Coleman was sentenced in 1997, before
the Supreme Court’s decision in Apprendi, the type and
quantity of controlled substances for which he was responsible
were not elements of his drug offenses; they were sentencing
factors for the District Court to determine by a preponderance
of the evidence. See United States v. Henry, 282 F.3d 242, 246
(3d Cir. 2002). It therefore would have made no sense for the
Court to confine its inquiry to the indictment—which had no
reason to distinguish powder from crack cocaine—when
determining Coleman’s statute of conviction. And though
Coleman’s superseding indictment recognizes the cocaine
types as distinct, we cannot assume the same of every pre-
Apprendi indictment charging § 846 or § 841 offenses.
The Government counters that the practice in the
Eastern District of Pennsylvania at the relevant time was to not
charge crack offenses as cocaine offenses: cocaine meant
cocaine and crack meant crack. Even were that true—Coleman
contests it—we could not assume the same of every district in
the Third Circuit.
6
Finally, we decline the Government’s invitation
because our caselaw forecloses it. In Birt, where a post-
Apprendi defendant’s charging document stated only a
§ 841(a)(1) offense, we consulted the plea agreement, the
Presentence Investigation Report (PSR), and the district
court’s sentence to determine the operative § 841(b) penalty
provision. See 966 F.3d at 259, 262. Those sources are even
more germane in a pre-Apprendi case like this one.
And contrary to the Government’s claim, full-record
review is not inconsistent with Jackson’s categorical approach
to § 404 eligibility. When the charging document fails to
specify a § 841(b) penalty provision, as it did here, we do not
propose to rest Coleman’s eligibility on his actual criminal
conduct. See Jackson, 964 F.3d at 202 (proscribing
consideration of the defendant’s conduct at the § 404(a) stage).
We look instead to the whole record to determine whether the
District Court clearly erred in identifying the penalty provision
grounding Coleman’s statute of conviction. See United States
v. Russell, 994 F.3d 1230, 1237 (11th Cir. 2021) (instructing
district courts to determine a First Step Act movant’s statute of
conviction by consulting the charging document, the jury
verdict or guilty plea, the sentencing record, and the final
judgment). Evaluation of the sentencing transcript and final
judgment is in fact critical to ascertaining Coleman’s statutory
penalty provision and therefore his statute of conviction. Only
the District Court’s findings on the drug type and quantity
attributable to Coleman establish the § 841(b) penalty
provision—a necessary “element[]” that, together with
§ 841(a), “define[s]” the crack offense. Terry v. United States,
141 S. Ct. 1858, 1862 (2021). So that “finding must occur
before the district court can define the substantive offense” by
choosing a suitable penalty provision. United States v. Jackson,
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58 F.4th 1331, 1336 (11th Cir. 2023). The District Court’s
choice of “the pertinent penalty subsection of § 841[b]” thus
“complete[d] the description of the crime,” Birt, 966 F.3d at
262 n.5, and determined Coleman’s statute of conviction at
sentencing. All of which tracks our holding in Jackson that the
defendant’s statute of conviction dictates his eligibility under
§ 404(a) of the Fair Sentencing Act.
B
The crux of Coleman’s appeal is his contention that he
was convicted of a dual-object conspiracy involving both
powder and crack cocaine. This argument finds some support
in the record. Take first the superseding indictment. Its
“manner and means” section alleges that, as “part of the
conspiracy,” Coleman and his co-defendants “would and did
process kilogram quantities of cocaine into cocaine base, also
known as ‘crack.’” App. 26. The indictment also alleges that
the conspiracy distributed, resold, and received payment for
selling crack. And its “overt acts” section alleges that the
conspirators discussed how to process and distribute crack.
Second, at trial, the District Court instructed the jury
that the offenses charged in the indictment “involve[d] a
Schedule II narcotic controlled substance known as cocaine
base or crack.” App. 88.
Third, the PSR stated that some of the cocaine trafficked
by the conspiracy was processed into crack for distribution.
Fourth, at the sentencing hearing, which focused on the
disputed quantity of drugs attributable to Coleman as the
conspiracy’s leader, the parties and the District Court discussed
crack. The Government sought the maximum base offense
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level of 38 for the conspiracy’s “involve[ment with] one and a
half kilograms or more” of crack. App. 165. The Court
assigned Coleman level 38 after finding that, as “co-leader of
the conspiracy,” he was responsible for “well in excess of one
and a half kilograms of crack cocaine.” App. 179.
Finally, on direct appeal, Coleman challenged the
District Court’s finding that he was responsible for 1.5
kilograms of crack. The Government responded that
substantial evidence supported the Court’s finding. The
Government stated that crack was a controlled substance
involved in the conspiracy. And it asserted that the “Coleman[]
cocaine trafficking enterprise distributed substantial amounts
of crack.” Gov’t Br. at 21, United States v. Coleman, 1998 WL
34169839 (3d Cir. Mar. 11, 1998).
In sum, the conspiracy trafficked in crack; the District
Court discussed at the sentencing hearing Coleman’s
responsibility for the conspiracy’s crack-related activities; and
the parties sparred on direct appeal over the amount of crack
attributable to Coleman.
The District Court acknowledged that Coleman was
found “responsible for 1.5 kilograms of crack cocaine at his
sentencing,” but concluded that Coleman was ineligible for
§ 404(b) relief because he “was not . . . convicted of an offense
involving crack cocaine.” App. 15 (emphasis added). It
reached that conclusion even though Coleman’s conspiracy
“involved” crack cocaine. See, e.g., App. 15–16 (“[T]his court
found that . . . Coleman was involved with 1.5 kilograms of
crack cocaine.”) (emphasis added). It might follow from that
conclusion that neither § 841(b)(1)(A)(iii) nor
§ 841(b)(1)(B)(iii)—the crack-offense penalty provisions the
Fair Sentencing Act modified, see Terry, 141 S. Ct. at 1862–
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63—formed the statutory basis for Coleman’s sentence. 2 That
would leave one powder-offense provision, § 841(b)(1)(A)(ii),
to constitute Coleman’s statute of conviction.
But the District Court did not identify Coleman’s
possible penalty provision(s)—§ 841(b)(1)(A)(ii),
§ 841(b)(1)(A)(iii), or both. Nor did the Court square its
conclusion that Coleman was not convicted of a crack offense
with the record evidence of crack. Instead, the Court appeared
to reason that because Coleman merited a life sentence on
account of his powder-cocaine-related conduct alone, he was
ineligible for discretionary § 404(b) relief. Because the Fair
Sentencing Act modified the statutory penalties for “all
[§ 841(b)(1)] subparagraph (A) and (B) [crack] offenders,”
Terry, 141 S. Ct. at 1863 (emphasis added), however, the
District Court should have proceeded to consider a
discretionary sentence reduction under § 404(b) unless the
Court determined that Coleman’s statute of conviction did not
involve § 841(b)(1)(A)(iii)—whether or not Coleman would
succeed on the merits under § 404(b). The District Court was
right to consider the “actual quantity of drugs a defendant
possessed”—but it should have done so at the discretionary
§ 404(b) merits stage, not as part of the § 404(a) eligibility
determination. Jackson, 964 F.3d at 204. In considering
Coleman’s motion, the Court appeared to conflate its § 404(a)
and § 404(b) analysis.
2
Neither § 841(b)(1)(B)(iii) nor § 841(b)(1)(C) appears to
have been Coleman’s penalty provision. Neither provision
could have supported Coleman’s life sentence unless the Court
found that the conspiracy resulted in someone’s death or
serious bodily injury, and the record in this case does not
indicate that finding.
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The bottom line is that the District Court did not
expressly identify the relevant § 841(b) provision that
grounded Coleman’s sentence. And its failure to do so
precludes us from reviewing its decision for clear error (or any
other standard, for that matter).
We conclude by providing guidance to the District
Court on remand. If the Court reaffirms what may have been
its implicit factual determination, it should acknowledge the
record’s crack references and explain why Coleman was not
convicted of a crack offense. Perhaps the Court sentenced
Coleman for his “relevant conduct,” a category embracing not
only controlled substances “involved ‘during the commission
of the offense of conviction,’” but also any that were “part of
the same course of conduct or common scheme or plan as the
offense of conviction.” United States v. Boone, 279 F.3d 163,
178 (3d Cir. 2002) (quoting U.S.S.G. § 1B1.3(a)(1)(B), (a)(2)).
The Guidelines required the Court to determine whether the
drugs involved in the conspiracy were powder cocaine, crack,
or both, as well as the amount of each, “regardless of whether
the judge believed that [Coleman’s] crack-related conduct was
part of the ‘offense of conviction.’” Edwards v. United States,
523 U.S. 511, 514 (1998) (citing U.S.S.G. § 1B1.3(a)). The
Guidelines, in other words, expressly distinguished between
criminal liability—on which Coleman’s § 404 eligibility
turns—and the “principles . . . of sentencing accountability”:
§ 1B1.3(a) focuses on the “specific acts and omissions for
which the defendant is to be held accountable in determining
the applicable guideline range, rather than on whether the
defendant is criminally liable for an offense.” U.S.S.G.
§ 1B1.3, cmt. n.1 (1995) (emphasis added). These principles
might help explain how Coleman could be found “responsible
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for 1.5 kilograms of crack cocaine” at sentencing yet not be
convicted of a crack offense. App. 15.
IV
Like the parties, we think the District Court’s
memorandum might fairly be read to include the implicit
factual determination that § 841(b)(1)(A)(ii) was the only
penalty provision on which Coleman’s sentence was based.
And such a finding would mean that Coleman was not
convicted of a “covered offense” under § 404(a) of the Fair
Sentencing Act. Yet the Court’s memorandum is silent on the
matter, so we have no basis to review its factual finding.
Prudence therefore requires us to vacate the District Court’s
order denying Coleman’s motion for a sentence reduction and
remand the case for further proceedings consistent with this
opinion. 3
3
We briefly dispatch two of Coleman’s other arguments to
promote judicial economy. Coleman claims the District
Court’s factual finding outside his presence “amounted to a
resentencing” that violated Rule 43 of the Federal Rules of
Criminal Procedure. Coleman Br. 14. We disagree because in-
person resentencing hearings are not required to adjudicate
First Step Act motions. United States v. Shields, 48 F.4th 183,
194 (3d Cir. 2022). Coleman also asserts that the District Court
violated his due process rights by making a factual
determination—namely, as to his statutory penalty provision—
outside his presence. We summarily reject this passing
contention because Coleman cites no due process caselaw to
support that assertion. See Goldman v. Citigroup Glob.
Markets Inc., 834 F.3d 242, 248 n.5 (3d Cir. 2016).
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