United States v. Winters ( 2021 )

Case: 20-30138 Document: 00515731115 Page: 1 Date Filed: 02/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2021
No. 20-30138 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Jonathan Winters,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:09-CR-64
Before Barksdale, Southwick, and Graves, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Jonathan Winters was convicted in 2010 for a dual-object conspiracy
involving both crack cocaine and powder cocaine. He sought a reduction of
his 233-month sentence under the First Step Act of 2018, which permits
district courts to apply the Fair Sentencing Act of 2010 retroactively to
sentences for certain crack-cocaine offenses. The district court reduced his
sentence, and the Government appealed. We AFFIRM the district court’s
decision to reduce his sentence.
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FACTUAL AND PROCEDURAL BACKGROUND
We divide our background section into three parts: the background of
Winters’ conviction and sentence, the statutory frameworks of the Fair
Sentencing Act and the First Step Act, and the procedural background of
Winters’ effort to obtain First Step Act relief.
I. Winters’ conviction and sentencing
In March 2009, a grand jury charged Winters with, among other
crimes, conspiracy to possess with intent to distribute 50 grams or more of
crack cocaine and 5 kilograms or more of powder cocaine. See 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(A)(ii)–(iii). Under a written agreement,
Winters pled guilty to the dual-object conspiracy charge.
The appropriate sentence for Winters’ conspiracy turned on the
interplay of three different statutory provisions. The relevant conspiracy
statute provides that a person convicted for conspiracy “shall be subject to
the same penalties as those prescribed for the offense, the commission of
which was the object of the . . . conspiracy.” Id. § 846. Winters’ dual-object
conspiracy implicated one penalty provision for the crack-cocaine object and
another for the powder-cocaine object. At the time of his offense and
sentencing, a statutory mandatory-minimum sentence of 10 years’
imprisonment applied to possession with intent to distribute 50 grams or
more of crack cocaine. Id. § 841(b)(1)(A)(iii) (2006). Possession with intent
to distribute 5 kilograms or more of powder cocaine also had a 10-year
mandatory-minimum sentence. Id. § 841(b)(1)(A)(ii) (2006). Working
together, these three provisions mandated a statutory range of ten years to
life imprisonment. Id. §§ 846, 841(b)(1)(A)(ii)–(iii) (2006).
The Presentence Report found Winters accountable for 1,368.55
grams of crack cocaine, 304.5 kilograms of powder cocaine, and 5 pounds of
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marijuana. 1 Winters faced a Guidelines range of 324 to 405 months. The
district court sentenced him to 360 months’ imprisonment and 5 years of
supervised release. Winters filed a direct appeal but voluntarily dismissed it.
Winters’ 360-month sentence had already been twice reduced prior to
his seeking a reduction under the First Step Act. In 2011, the district court
reduced his sentence to 288 months in response to a motion made by the
Government under Federal Rule of Criminal Procedure 35(b). Then, in
2017, it reduced his sentence to 233 months following a retroactive change to
the Sentencing Guidelines. This appeal concerns the third reduction.
II. The Fair Sentencing Act and the First Step Act
Two statutory enactments are relevant to this appeal. First, just two
months after Winters was sentenced, Congress enacted the Fair Sentencing
Act, which modified the statutory penalties for certain crack-cocaine
offenses. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a), 124
Stat. 2372, 2372 (2010). Among other changes, that enactment “increased
the drug amounts triggering mandatory minimums for crack trafficking
offenses.” Dorsey v. United States, 567 U.S. 260, 269 (2012). It amended 21
U.S.C. § 841(b)(1)(A)(iii) to increase the quantity required to trigger the 10-
year mandatory minimum from 50 grams to 280 grams. Fair Sentencing Act
§ 2(a)(1). It also amended 21 U.S.C. § 841(b)(1)(B)(iii) to increase the
quantity required to trigger the 5-year mandatory minimum from 5 grams to
28 grams. Fair Sentencing Act § 2(a)(2). The Fair Sentencing Act
1
The record on appeal does not contain the transcript of Winters’ sentencing
hearing. It does contain a document titled “Minutes of Court – Sentencing.” That
document indicates that, before announcing Winters’ sentence, the district court
“considered the guideline range,” the sentencing factors set forth in 18 U.S.C. § 3553, and
“all otherwise relevant sentencing considerations.” It is not clear whether the district
court made any specific drug-quantity findings.
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drastically reduced disparities in punishments between crack-cocaine and
powder-cocaine offenses. Dorsey, 567 U.S. at 269. 2 The Act alone did not
help Winters, though, because it did not apply retroactively. United States v.
Jackson, 945 F.3d 315, 318 (5th Cir. 2019).
Second, Congress in 2018 enacted the First Step Act. Among other
effects, it made the Fair Sentencing Act’s modifications of the statutory
penalties for crack-cocaine offenses apply retroactively. First Step Act of
2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). In summary,
the First Step Act provides that if the motion for a sentence reduction
identifies a “covered offense” under Section 404(a), the district court has
authority under Section 404(b) to impose a reduced sentence “as if” the
penalties as amended by Sections 2 and 3 of the Fair Sentencing Act were in
effect. A district court, though, may not grant a First Step Act motion if
either of Section 404(c)’s limitations apply.
The specific language of the First Step Act is this:
(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.
2
Before the Fair Sentencing Act, the statutory penalties as provided by the 1986
Drug Act “treated crack cocaine crimes as far more serious.” Dorsey, 567 U.S. at 266. The
10-year mandatory minimum for crack cocaine would apply to just 50 grams, but the same
penalty for powder cocaine required 5,000 grams. Id. Likewise, the 5-year mandatory
minimum for crack cocaine would apply to as little as 5 grams, while the same penalty for
powder cocaine required 500 grams. Id. The Fair Sentencing Act reduced the 100:1 crack-
to-powder ratio to 18:1. Id. at 269. For more discussion of the background of the Fair
Sentencing Act, see United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019).
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(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.
(c) Limitations.—No court shall entertain a motion made
under this section to reduce a sentence if the sentence was
previously imposed or previously reduced in accordance with
the amendments made by sections 2 and 3 of the Fair
Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) or
if a previous motion made under this section to reduce the
sentence was, after the date of enactment of this Act, denied
after a complete review of the motion on the merits. Nothing
in this section shall be construed to require a court to reduce
any sentence pursuant to this section.
Id. In this appeal, we must determine whether Winters’ dual-object
conspiracy is a “covered offense” under Section 404(a) and whether the
district court had statutory authority to reduce Winters’ sentence under
Section 404(b).
III. Winters’ effort to obtain relief under the First Step Act
For First Step Act matters, the United States District Court for the
Western District of Louisiana entered an administrative order authorizing
the Federal Public Defender to represent defendants who had previously
been determined to have been entitled to appointed counsel. The order also
authorized the United States Probation Office (“USPO”) to determine
which defendants were eligible for First Step Act relief. The USPO
determined that Winters was ineligible for relief because the First Step Act
did not apply to the powder-cocaine object of his conspiracy, and his
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statutory range of ten years to life was not changed by the Fair Sentencing
Act.
Represented by the Federal Public Defender, Winters objected to this
determination of ineligibility and moved for a reduction of his sentence. He
asserted eligibility for a discretionary reduction because the statutory
penalties for the crack-cocaine object of his conspiracy were modified by the
Fair Sentencing Act. See Fair Sentencing Act § 2(a)(1) (amending 21 U.S.C.
§ 841(b)(1)(A)(iii)). He argued that it was irrelevant that his offense also
involved powder cocaine. He then requested a reduction to time served
based on the factors set forth in 18 U.S.C. § 3553(a).
The Government opposed Winters’ request on all fronts. First, it
argued that Winters’ dual-object conspiracy is not a “covered offense”
because the powder-cocaine object independently triggered the ten-to-life
statutory sentencing range. To the Government, that his range was
unaffected rendered him ineligible for relief. Second, it argued that, even if
eligible, the court should deny the request for a sentence reduction under its
discretion to do so.
The district court granted Winters’ motion for a sentence reduction.
It held that the dual-object conspiracy is a “covered offense” making
Winters, “as a threshold matter, eligible for relief under the First Step Act.”
The court observed that “the language of the First Step Act, on its face, does
not limit eligibility to defendants whose convictions solely involved cocaine
base,” i.e., crack cocaine. Because the statutory penalties for the crack-
cocaine object of his conspiracy were modified by Section 2 of the Fair
Sentencing Act, it was a “covered offense.” 3 Finding relief to be warranted
3
The district court expressed reservations about reading the First Step Act in a
way that would allow the Government to control whether offenses are “covered” by
strategically charging defendants with dual-object conspiracies. It stated that “[t]he
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under the factors set forth in 18 U.S.C. § 3553(a), the court exercised its
discretion to reduce Winters’ sentence from 233 months’ imprisonment to
180 months, and from 5 years of supervised release to 4 years.
The Government appealed, arguing only that Winters is ineligible for
a reduction. 4 We review a district court’s determination of First Step Act
eligibility de novo to the extent it turns on any questions of statutory
interpretation. Jackson, 945 F.3d at 319. Statutory interpretation questions
are the only ones presented in this appeal.
DISCUSSION
Our analysis of whether Winters is eligible for First Step Act relief
proceeds in two parts. First, we consider whether Winters’ dual-object
conspiracy involving crack cocaine and powder cocaine is a “covered
offense” under Section 404(a). Second, we analyze the district court’s
authority to reduce Winters’ sentence.
When interpreting a statute, we start with the text. United States v.
Hegwood, 934 F.3d 414, 418 (5th Cir. 2019). The Act defines “covered
offense” as “a violation of a Federal criminal statute, the statutory penalties
for which were modified by section 2 or 3 of the Fair Sentencing Act . . . that
was committed before August 3, 2010.” First Step Act § 404(a). If a movant
presents a “covered offense,” then the district court is authorized to
government could have charged Winters with two counts of violating 21 U.S.C. §§ 841 and
846 — i.e., one count of conspiring to distribute powder cocaine and one count of
conspiring to distribute cocaine base — but it did not.” Quoting another district court
opinion, United States v. Luna, 436 F. Supp. 3d 478, 482 (D. Conn. 2020), the court
observed that “[t]he availability of First Step Act relief cannot be so fickle.”
4
The Government conceded that it does not argue on appeal that, if Winters is
eligible for a reduction, the district court abused its discretion.
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“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. §
404(b).
If a movant was convicted of a “covered offense” under Section
404(a) and Section 404(c)’s specific limitations do not apply, then a movant
is eligible for relief under Section 404(b) of the Act. Eligibility for
resentencing does not equate to entitlement, though. Jackson, 945 F.3d at
321. District courts have “broad discretion” to decide whether to reduce an
eligible movant’s sentence. Id. One reason is the text of Section 404(b),
which provides that a court “may” impose a reduced sentence for an eligible
movant. A clearer reason is that Section 404(c) states that “[n]othing in this
section shall be construed to require a court to reduce any sentence pursuant
to this section.” We now turn to the two interpretive questions before us.
I. Is Winters’ dual-object conspiracy a covered offense?
Winters’ conspiracy involved both crack and powder cocaine. The
statutory penalties for the crack-cocaine object were modified by the Fair
Sentencing Act, but the penalties for the powder-cocaine object were not.
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 . . . that was committed before August 3, 2010.” First Step
Act § 404(a). The issue of “whether a defendant has a ‘covered offense’
under section 404(a) depends only on the statute under which he was
convicted.” Jackson, 945 F.3d at 320. The inquiry does not turn on the facts
specific to the defendant’s offense; if a movant “was convicted of violating a
statute whose penalties were modified by the Fair Sentencing Act, then he
meets that aspect of a ‘covered offense.’” Id.
Winters’ statute of conviction is 21 U.S.C. § 846, which incorporated
the statutory penalties for two different drug-trafficking crimes, 21 U.S.C.
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§ 841(b)(1)(A)(iii) (crack cocaine) and 21 U.S.C. § 841(b)(1)(A)(ii) (powder
cocaine). Before the Fair Sentencing Act, each object had a mandatory
statutory range of ten years to life imprisonment. 21 U.S.C.
§ 841(b)(1)(A)(ii)–(iii) (2006). Then, the Fair Sentencing Act amended
Section 841(b)(1)(A)(iii) and increased the quantity of crack cocaine required
for the ten-year mandatory-minimum penalty to apply. See Fair Sentencing
Act § 2(a)(1). The Fair Sentencing Act modified the statutory penalties, as
required by Section 404(a) of the First Step Act, for the crack-cocaine
offenses in Section 841(b)(1). See Jackson, 945 F.3d at 320.
The statutory penalties for the crack-cocaine object of Winters’ dual-
object conspiracy were modified by Section 2(a)(1) of the Fair Sentencing
Act. To us, that means Winters “was convicted of violating a statute whose
penalties were modified by the Fair Sentencing Act.” Id. Further, his
conspiracy lasted from 1991 to 2006, meaning the offense “was committed
before August 3, 2010.” First Step Act § 404(a). Winters’ dual-object
conspiracy is therefore a “covered offense.”
The Government’s arguments include that Winters’ conspiracy is not
a “covered offense” because he would have faced the same statutory
sentencing range (ten years to life) had he been sentenced under the Fair
Sentencing Act. Although the Fair Sentencing Act in fact had no effect on
Winters’ overall statutory sentencing range, the First Step Act refers to
modifications of the prescribed penalties under a federal statute. In the case
of a multi-object offense, the argument that eligibility requires that there be a
change in the statutory range resulting from considering all objects of the
conspiracy is adding language to what Congress stated in simple terms. The
district court’s decision to reduce Winters’ sentence is an indication that the
reduction of the minimum sentence for only one of the objects of a conspiracy
can lead district judges to revise a sentence downward. We consider that
opportunity to be exactly what Congress was providing.
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The Government also contends that our holding Winters’ conspiracy
to be a “covered offense” would grant him a windfall unavailable to
defendants charged and sentenced today. We see no windfall. Someone like
Winters receives consideration for a new sentence under the same conditions
as would a newly convicted defendant for the same multi-object conspiracy.
Winters’ eligibility did not entitle him to a sentence lower than his original
one, only to consideration for one.
Finally, the Government argues that holding Winters’ conspiracy to
be a “covered offense” would lead to absurd results. The Government says
it would be absurd to conclude that defendants sentenced solely for powder-
cocaine offenses are not eligible while concluding that Winters is eligible
because his “more serious offense” also involved crack cocaine. We do not
see an absurdity. To the contrary, the possibility follows the text of the Fair
Sentencing Act and of the First Step Act. Eligibility extends exclusively to
offenses involving crack cocaine, but eligibility is not limited to offenses
involving exclusively crack cocaine.
In conclusion, the straightforward, unforced interpretation of the
statutory text is that if Section 2 or 3 of the Fair Sentencing Act modified the
statutory penalties for at least one object of a multi-object conspiracy, “the
statutory penalties” for that conspiracy offense “were modified by” the Fair
Sentencing Act, and the conspiracy satisfies Section 404(a) of the First Step
Act. This remains true regardless of whether the modified penalty supplies
the mandatory minimum that is actually imposed. The “statutory penalties”
have to be considered modified when any statutory penalty for one of the
offenses included in a count of conviction has been changed.
This part of the First Step Act should not be made more demanding
than its wording allows. A modification of the penalty for one of the counts
of conviction — including the penalty, as here, for one of the statutory objects
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of a conspiracy — is enough to satisfy Section 404(a). Whether the interplay
of statutory minima of the modified and other, unmodified statutes relevant
to the conviction actually changes the sentencing range is relevant, but only
at the later merits stage. Indeed, the Government’s arguments identify
reasons why a district court might not exercise discretion to modify a
sentence. They are not relevant arguments at the eligibility stage.
Other circuits have considered this issue and reached competing
results. The Fourth Circuit held that a dual-object conspiracy to distribute
both crack cocaine and powder cocaine is a “covered offense.” United States
v. Gravatt, 953 F.3d 258, 264 (4th Cir. 2020). Like Winters’ original 360-
month sentence, Gravatt’s original 292-month sentence was well above the
statutory floor of 120 months. Id. at 261. The court saw “nothing in the text
of the Act requiring that a defendant be convicted of a single violation of a
federal criminal statute whose penalties were modified by . . . the Fair
Sentencing Act.” Id. at 264. Further, the court reasoned that, while
Congress provided two express limitations in Section 404(c), the
Government’s proposed limitation (that the Act did not apply when a
covered offense was combined with a non-covered offense) was not among
them. Id. Concluding that the movant was otherwise eligible for First Step
Act relief, the Fourth Circuit vacated the district court’s decision denying
relief and remanded for the district court to review the motion on the merits.
Id.The Eleventh Circuit reached the same conclusion. See United States
v. Taylor, 982 F.3d 1295 (11th Cir. 2020). It held that “the First Step Act’s
definition of ‘covered offense’ covers a multidrug conspiracy offense that
includes both a crack-cocaine element and another drug-quantity element.”
Id. at 1300. In that circuit, an offense is covered if it “triggered a statutory
penalty that has since been modified by the Fair Sentencing Act.” United
States v. Jones, 962 F.3d 1290, 1298 (11th Cir. 2020). For multi-object
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conspiracies, the Taylor court explained that the offense “include[s] all the
penalties triggered by every drug-quantity element of the offense, not just the
highest tier of penalties triggered by any one drug-quantity element.” Taylor,
982 F.3d at 1300. Rejecting the same argument the Government makes in
this case, the court concluded that a dual-object conspiracy involving a crack-
cocaine object modified by the Fair Sentencing Act is covered “even if the
movant ultimately would be subject to the same statutory sentencing range
as a consequence of another drug-quantity element of the offense.” Id. at
1301. The Taylor court ultimately held that the movant was eligible for First
Step Act relief and should be afforded “the opportunity to make his case for
a reduction in his sentence.” Id.
The Second Circuit, though, reached the opposite conclusion in an
unpublished opinion. See United States v. Lott, 830 F. App’x 366 (2d Cir.
2020). In that case, the movant was convicted of a triple-object conspiracy
involving crack cocaine, powder cocaine, and marijuana, and his statutory
range was 20 years to life. Id. at 366. The Fair Sentencing Act modified the
crack-cocaine object of the movant’s offense but did not affect his overall
statutory range. Id. The Lott court held that the conspiracy was not covered
because “[t]he statutory penalty range for someone convicted of [his] offense
before the Fair Sentencing Act is the same range that would apply to someone
convicted of that offense after the Fair Sentencing Act.” Id. According to
the Second Circuit, this meant that the statutory penalties for his offense
“were [not] modified” by the Fair Sentencing Act as required by Section
404(a). Id. (alteration in original).
In our view, the Fourth and Eleventh Circuit decisions are consistent
with the text of the First Step Act. Nothing in Section 404(a) suggests that
eligibility turns on whether the movant would face a different statutory range
if sentenced today. As the Eleventh Circuit reasoned, “[b]y conditioning
eligibility on the movant’s offense, rather than on his actual conduct or the
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applicable sentencing range, the First Step Act casts a wide net at the
eligibility stage.” Taylor, 982 F.3d at 1300. We will not restrict eligibility
based on an extra-textual limitation. In the next section, though, we will
discuss the requirement that the existing sentence for which a reduction is
sought be greater than the relevant statutory minimum, else there is no
possibility of a lower sentence. Our only point here is that we see no reason
under the statutory text to place that consideration within Section 404(a).
In summary, Winters’ dual-object conspiracy under 21 U.S.C. § 846incorporates and invokes the statutory penalties for both the crack-cocaine
object and the powder-cocaine object. The statutory penalties for the crack-
cocaine object were modified by Section 2 of the Fair Sentencing Act. See
Fair Sentencing Act § 2(a)(1) (amending 21 U.S.C. § 841(b)(1)(A)(iii)). As
a result, his conspiracy is “a violation of a Federal criminal statute, the
statutory penalties for which were modified by section 2 . . . of the Fair
Sentencing Act.” First Step Act § 404(a). Because it was committed before
August 3, 2010, it is a “covered offense” under Section 404(a).
II. Did the district court have statutory authority under Section 404(b) to
reduce Winters’ sentence?
“It is clear that the First Step Act grants a district judge limited
authority to consider reducing a sentence previously imposed.” Hegwood,
934 F.3d at 418. If a movant presents a “covered offense,” then Section
404(b) permits the court 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). The court therefore may “plac[e]
itself in the time frame of the original sentencing, altering the relevant legal
landscape only by the changes mandated by the 2010 Fair Sentencing Act.”
Hegwood, 934 F.3d at 418.
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A district court lacks authority to reduce a sentence that is already at
the statutory floor. Section 404(b) does not provide discretion for
resentencing if the movant’s current sentence is the statutory minimum
penalty under the Fair Sentencing Act. A sentence shorter than the statutory
minimum could not be imposed “as if” the Fair Sentencing Act was in effect.
This reading of Section 404(b) is consistent with the Eleventh
Circuit’s decisions in Taylor and Jones. In Taylor, the court explained that
“a movant who was sentenced to the lowest statutory penalty available to
him under the Fair Sentencing Act cannot receive any further reduction in
his sentence under the First Step Act.” 982 F.3d at 1301–02. The Jones
court similarly explained that, “[i]f the movant’s sentence would have
necessarily remained the same had the Fair Sentencing Act been in effect,
then the district court lacks the authority to reduce the movant’s sentence.”
962 F.3d at 1303.
In Taylor, the “as if” clause in Section 404(b) did not “forbid” a
reduction because that movant’s sentence was for a term longer than the
statutory minimum. Taylor, 982 F.3d at 1302. By contrast, in each of the
three cases where other circuits have determined that the district court
lacked statutory authority to reduce the movant’s sentence because of the
“as if” clause, the movant’s sentence was already at the statutory floor. See
United States v. Echeverry, 978 F.3d 857, 859–60 (2d Cir. 2020); Jones, 962
F.3d at 1304; United States v. Johnson, 830 F. App’x 772, 773 (7th Cir. 2020).
In this case, Winters’ statutory minimum under the Fair Sentencing
Act is ten years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(ii). He was
originally sentenced to a term of 30 years. Having already received two
reductions, Winters’ sentence at the time he requested First Step Act relief
was 233 months, still more than 9 years longer than the statutory minimum.
The district court therefore had statutory authority to reduce Winters’
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sentence “as if” the Fair Sentencing Act was in effect. That the district court
reduced his sentence to 180 months, still 5 years longer than the statutory
minimum, confirms that his sentence was reduced “as if” the Fair
Sentencing Act was in effect.
The district court correctly determined that Winters’ dual-object
conspiracy involving crack cocaine and powder cocaine is a “covered
offense” under Section 404(a) of the First Step Act. The court had statutory
authority under Section 404(b) to reduce his sentence from 233 months to
180 months. Finally, neither of Section 404(c)’s limitations apply. Winters
is therefore eligible for relief under the First Step Act. The district court’s
decision to reduce Winters’ sentence is AFFIRMED.
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