United States v. Elam ( 2023 )

Case: 22-40373 Document: 00516921358 Page: 1 Date Filed: 10/05/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
October 5, 2023
No. 22-40373 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Spencer Garod Elam,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:11-CR-42-1
______________________________
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam: *
Spencer Elam appeals the district court’s denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(1). The court concluded that
a non-retroactive change to the applicable sentencing framework did not
qualify as an “extraordinary and compelling reason” to reduce Elam’s
sentence. Finding no abuse of discretion, we affirm.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40373
I.
In 2012, a jury convicted Elam on six counts of various drug and
firearm-related offenses. Two of those counts (counts 2 and 4) were for
using, carrying, or possessing a firearm during and in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c). 1
Elam’s total prison sentence for all counts was 480 months. The two
§ 924(c) offenses accounted for 360 months—60 months on count 2 and 300
months on count 4. The lengthier count 4 sentence arose from the fact that,
under the version of § 924(c) then in effect, second or subsequent
convictions triggered a 300-month minimum. See 18 U.S.C. § 924(c)(1)(C)
(2006). Moreover, another part of § 924(c) provided that the 360 months on
counts 2 and 4 could not run concurrently with Elam’s other sentences. See
§ 924(c)(1)(D)(ii). So, the 360 months for the two § 924(c) counts would be
served consecutively to the 120 months for the other counts, yielding a total
sentence of 480 months.
In 2018, the First Step Act amended the sentencing framework for
persons convicted of multiple § 924(c) offenses. As amended, the minimum
300-month sentence for a second § 924(c) conviction is required only when
the first § 924(c) sentence is “final” at the time of the second conviction. See
First Step Act of 2018, Pub. L. No. 115-391, § 403, 132 Stat. 5194, 5221–22;
§ 924(c)(1)(C) (2022). So, had Elam been sentenced under the current
framework, the mandatory minimum for his second § 924(c) conviction
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1
In addition to counts 2 and 4, Elam’s convictions were for conspiracy to possess
with intent to distribute hydrocodone in violation of 21 U.S.C. §§ 846, 841(b)(1)(E) (count
1); possession with intent to distribute hydrocodone in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(E)(ii) (count 3); felon in possession of a firearm in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2) (count 5); and use of a communication facility to facilitate the
commission of a felony in violation of 21 U.S.C. § 843(b) (count 11).
2
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No. 22-40373
would have been only 60 months. Congress, however, did not make these
changes retroactive. See First Step Act of 2018, Pub. L. No. 115-391, § 403(b),
132 Stat. 5194, 5222 (specifying that the changes “shall apply to any offense
that was committed before the date of enactment of this Act, if a sentence for
the offense has not been imposed as of such date of enactment” (emphasis added)).
Nonetheless, after exhausting his administrative remedies, Elam filed
a motion under 18 U.S.C. § 3582(c)(1) to reduce his prison term based on the
2018 amendment. 2 He argued that the amendment presented an
“extraordinary and compelling” reason warranting a reduction. See id.§ 3582(c)(1)(A)(i) (allowing court to reduce prison term, if, inter alia,
“extraordinary and compelling reasons warrant such a reduction”). And
pointing to his purported rehabilitation, Elam asked that his total sentence be
reduced to either time served or 240 months to reflect the new 60-month
mandatory minimum for successive § 924(c) offenses like his. The district
court denied Elam’s motion, concluding that the non-retroactive change to §
924(c)’s sentencing framework was neither “extraordinary” nor
“compelling.” 3
Elam appealed. His only colorable argument is that the district court
erred by concluding the non-retroactive amendment to § 924(c) did not
amount to an “extraordinary and compelling reason[]” for reducing his
sentence under § 3582(c)(1)(A)(i). 4 We review that decision for abuse of
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2
Elam had counsel in the district court but is pro se on appeal.
3
The district court also found that Elam’s purported rehabilitation did not affect
its analysis, given the statute’s express provision that “[r]ehabilitation of the defendant
alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t).
The court reasoned that “[t]wo ordinary reasons cannot combine to create an
extraordinary one.”
4
Contrary to Elam’s argument, the district court did not treat as binding the
Sentencing Commission’s policy statement on § 3582(c)(1)(A). The district court stated
3
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discretion. United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020). “[A]
court abuses its discretion if it bases its decision on an error of law or a clearly
erroneous assessment of the evidence.” United States v. Cooper, 996 F.3d
283, 286 (5th Cir. 2021) (alteration in original) (quoting Chambliss, 948 F.3d
at 693).
II.
A prisoner moving for a sentence reduction under § 3582(c)(1)(A)
must show the reduction is (1) warranted by “extraordinary and compelling
reasons”; (2) consistent with the Sentencing Commission’s applicable policy
statements; and (3) justified under the discretionary § 3553(a) factors. See
§ 3582(c)(1)(A)(i); United States v. Shkambi, 993 F.3d 388, 392 (5th Cir.
2021). Instead of defining “extraordinary and compelling reasons” for
purposes of § 3582, Congress delegated to the Commission the authority to
promulgate policy statements describing what those reasons might be.
Shkambi, 993 F.3d at 391 (citing 28 U.S.C. § 994(t)). Under current law,
however, the Commission’s policy statements only govern motions brought
by the Bureau of Prisons, not those brought by prisoners. Id. at 392.
As noted, the district court concluded that the non-retroactive 2018
change to § 924(c)’s sentencing regime did not count as an “extraordinary
and compelling” reason under § 3582(c)(1)(A)(i). Elam argues this was an
abuse of discretion. There is a circuit split on this question. 5 While our circuit
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precisely the opposite. The policy statement merely “inform[ed] [the district court’s]
analysis,” which is permissible. United States v. Thompson, 984 F.3d 431, 433 (5th Cir.
2021).
5
Compare United States v. McCall, 56 F.4th 1048, 1055 (6th Cir. 2022) (en banc),
United States v. Jenkins, 50 F.4th 1185, 1198–99 (D.C. Cir. 2022), United States v. Crandall,
25 F.4th 582, 586 (8th Cir. 2022), United States v. Andrews, 12 F.4th 255, 261 (3d Cir. 2021),
and United States v. Thacker, 4 F.4th 569, 575 (7th Cir. 2021), with United States v. Chen, 48
F.4th 1092, 1098–99 (9th Cir. 2022), United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir.
4
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has not authoritatively weighed in on the issue, a recent unpublished opinion
concluded that such a non-retroactive change cannot warrant a reduced
sentence under § 3582(c)(1)(A)(i). See United States v. McMaryion, No. 21-
50450, 2023 WL 4118015, at *2 (5th Cir. June 22, 2023) (holding “a prisoner
may not leverage non-retroactive changes in criminal law to support a
compassionate release motion, because such changes are neither
extraordinary nor compelling”) (citing United States v. Jenkins, 50 F.4th
1185, 1198–1200 (D.C. Cir. 2022), and United States v. McCall, 56 F.4th 1048,
1065–66 (6th Cir. 2022) (en banc)). In light of McMaryion, we cannot say that
the district court abused its discretion here.
We note that a forthcoming policy statement from the Sentencing
Commission would apply to sentence reduction motions by both the Bureau
of Prisons and prisoners themselves. 6 That policy statement indicates that
district courts “may” consider changes in law as part of the “extraordinary
and compelling” reasons analysis, but “only” after “full[y] consider[ing]”
the prisoner’s “individualized circumstances.” See U.S.S.G.
§ 1B1.13(b)(6)(a) (2023). We express no view on whether Elam may file an
additional motion based on the amended policy statement and his
individualized circumstances. See, e.g., United States v. Bethea, 54 F.4th 826,
833 n.2 (4th Cir. 2022) (noting “that § 3582(c) does not prevent prisoners
from filing successive motions”). And, of course, we express no view on
whether any such motion should be granted.
AFFIRMED.
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2022), United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021), and United States
v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020).
6
See U.S.S.G. § 1B1.13(a) (2023) (https://perma.cc/7AXU-G63S). Barring
contrary action from Congress, this amendment will go into effect on November 1, 2023.
See 28 U.S.C. § 994(p).
5