United States v. Gene Sutton ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2009
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GENE C. SUTTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:07-cr-20009-JES-DGB-1 — James E. Shadid, Judge.
____________________
ARGUED MAY 26, 2020 — DECIDED JUNE 23, 2020
____________________
Before FLAUM, SCUDDER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Over a decade ago, the district court
(then Chief Judge McCuskey) sentenced Gene Sutton to his
then statutory minimum 15 years’ imprisonment for distrib-
uting cocaine base (“crack”) and carrying a firearm during a
drug-trafficking crime. In announcing the sentence, the court
emphasized that it had no authority to reduce the sentence
further or amend it later, except on the government’s motion,
and that the court’s authority had been so limited since the
2 No. 19-2009
Sentencing Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1837.
“Nobody’s going to change it,” the court told Sutton.
But Congress did change things when it passed the First
Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Under
§ 404 of this new law, a defendant sentenced for a covered of-
fense (which includes Sutton’s crack cocaine charge) may
move for the district court to impose a reduced sentence. Sut-
ton submitted his motion seeking relief and the district court,
now Judge Shadid, denied it. On Sutton’s pro se appeal, we
recruited counsel to submit supplemental briefing on the nar-
row question of the proper vehicle for a First Step Act motion.
In other words, we asked the parties to brief how the First
Step Act interacts with the Sentencing Reform Act, which, as
Judge McCuskey recognized, generally prohibits a court from
modifying a sentence.
We hold that the First Step Act is its own procedural vehi-
cle. The dispute between the parties is, at this point, mostly
semantic, though our conclusion does clarify that the only
limits on the district court’s authority under the First Step Act
come from the interpretation of the First Step Act itself. With
that said, this is not the case to explore fully what those limits
might be. We conclude that the district court did not abuse its
discretion and, therefore, affirm the judgment.
I. Background
Sutton pleaded guilty to his two charges in 2008 and ad-
mitted that he distributed 124 grams of crack cocaine, 21
U.S.C. § 841(a)(1), (b)(1)(A), and had carried a firearm in con-
nection with that offense, 18 U.S.C. § 924(c). Distributing
more than 50 grams of crack carried a 10-year statutory mini-
mum sentence at the time, and § 924(c) required the court to
No. 19-2009 3
impose a five-year sentence consecutive to that of the under-
lying offense, 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). The minimum
total sentence for Sutton’s conduct was, thus, 15 years’ impris-
onment.
As sentencing approached, the parties disagreed on the
importance of this minimum sentence. Sutton contended that
he was entitled to a three-offense-level reduction for ac-
ceptance of responsibility. See U.S.S.G. § 3E1.1. By his calcula-
tion, his Guidelines range should have been 147–168 months’
imprisonment (including the 60 months for the § 924(c)
charge) and so the minimum 180-month sentence was appro-
priate. See U.S.S.G. § 5G1.1(b). The government, however, ar-
gued that Sutton had lied under oath at his detention hearing.
It opposed the three-level reduction and sought a further two-
level enhancement for obstruction of justice. See U.S.S.G.
§ 3C1.1. This would have resulted in a sentencing range of
248–295 months. (The parties also differed on whether Sutton
was responsible for 19 kilograms of powder cocaine, though
it was irrelevant to the Guidelines calculation.)
The district court never resolved these disputes. Instead,
the parties entered a sentencing agreement reflecting an
agreed 180-month sentence. Sutton and the government
would “agree to disagree,” according to defense counsel, and
the government likewise said it intended to “short-circuit
th[e] process.” In imposing the sentence reflected in the agree-
ment, the district court similarly asserted that the agreement
would “supersede the presentence report” and make all dis-
putes “irrelevant” and “moot.”
The year after entry of judgment in Sutton’s case, Congress
passed the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372. Section 2 of the Fair Sentencing Act raised from
4 No. 19-2009
50 grams to 280 grams the amount of crack cocaine necessary
to trigger the 10-year minimum sentence. See United States v.
Shaw, 957 F.3d 734, 736–37 (7th Cir. 2020) (providing tables
listing changes). This could have helped Sutton, who had
been convicted for distributing less than 280 grams, but the
Fair Sentencing Act was not initially retroactive for defend-
ants sentenced before its effective date, August 3, 2010. See
Dorsey v. United States, 567 U.S. 260, 264 (2012).
Congress made the Fair Sentencing Act retroactive for
someone like Sutton eight years later. Under the First Step
Act,
[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 were in effect
at the time the covered offense was committed.
First Step Act, § 404(b) (citation omitted). A covered offense is
defined as “a violation of a Federal criminal statute, the stat-
utory penalties for which were modified by section 2 or 3 of
the Fair Sentencing Act of 2010 that was committed before Au-
gust 3, 2010.” Id. § 404(a) (citation omitted); see Shaw, 957 F.3d
at 739 (interpreting this definition).
Sutton moved for a reduced sentence in early 2019. (The
parties have consistently agreed he is eligible for relief.) He
primarily argued that the agreement entitled him to his new
statutory minimum—ten years—and, thus, immediate re-
lease. The government responded that Sutton had already re-
ceived a sentencing benefit from the agreement as is. The dis-
trict court sided with the government and declined to reduce
No. 19-2009 5
Sutton’s sentence further. In doing so, the court characterized
the government’s sentencing agreement as being in exchange
for Sutton’s “withdrawal” of his objections to the PSR. Thus,
it used probation’s amended Guidelines range, which as-
sumed Sutton had obstructed justice and was responsible for
the 19 kilograms of powder cocaine. Sutton unsuccessfully
sought reconsideration and submitted an untimely notice of
appeal.
II. Jurisdiction
We start with some jurisdictional housekeeping. First, Sut-
ton’s late notice of appeal does not deprive us of authority to
hear this case. Federal Rule of Appellate Procedure 4(b),
which governs the timing of criminal appeals, is a non-juris-
dictional claim-processing rule whose enforcement the gov-
ernment may either waive or forfeit. United States v. Neff, 598
F.3d 320, 323 (7th Cir. 2010). The government has expressly
waived its rights, so we consider the appeal on its merits.
Sutton was also released from prison a month before oral
argument, though the parties agree that his release does not
moot the appeal. Sutton is serving a five-year term of super-
vised release. If we were to find that the district court erred in
denying a sentence reduction, it would not “automatically en-
title him to less supervised release” but it would carry “great
weight” in a motion to terminate supervised release under 18
U.S.C. § 3583(e)(1). Pope v. Perdue, 889 F.3d 410, 415 (7th Cir.
2018) (citing United States v. Johnson, 529 U.S. 53 (2000)). More-
over, the parties also agree the First Step Act permits the dis-
trict court to reduce Sutton’s term of supervised release, be-
cause § 404(b) refers to imposing a reduced sentence and not
just a term of imprisonment. The sentence includes not only
the term of imprisonment but also the term of supervised
6 No. 19-2009
release and any fines. See 18 U.S.C. §§ 3551, 3583. If we were
to remand, the district court could decide whether to reduce
Sutton’s supervised release term and, in doing so, “factor in
how much (if at all) it would have reduced [his] prison term.”
United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020); see
also United States v. Kelley, No. 19-30066, 2020 WL 3168518, at
*3 n.5 (9th Cir. June 15, 2020) (same).
There are, thus, at least two possible remedies. Because we
can order “effectual relief,” even if not Sutton’s early release
from prison, this appeal is not moot. Church of Scientology v.
United States, 506 U.S. 9, 12 (1992).
III. Procedural Vehicle
We now turn to the question on which we sought supple-
mental briefing: what the proper procedural vehicle is for a
motion under § 404(b) of the First Step Act. The problem pre-
sented is the interaction between the First Step Act and the
Sentencing Reform Act. The former permits an already sen-
tenced defendant to request, and a district court to impose, a
reduced sentence. Under the latter, though, “[t]he court may
not modify a term of imprisonment once it has been im-
posed,” with three identified exceptions. 18 U.S.C. § 3582(c).
The first exception under the Sentencing Reform Act per-
mits a court to reduce a term of imprisonment for “extraordi-
nary and compelling reasons” or for certain elderly prisoners.
18 U.S.C. § 3582(c)(1)(A). Originally, only the Bureau of Pris-
ons could submit a motion under this subsection, but the First
Step Act added that a defendant can now file a motion himself
after exhausting administrative remedies. See id.; First Step
Act, § 603(b)(1).
No. 19-2009 7
The second exception is a catch-all: “the court may modify
an imposed term of imprisonment to the extent otherwise ex-
pressly permitted by statute or by Rule 35 of the Federal Rules
of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). Rule 35 is a
limited remedy, available only within 14 days of sentencing
for “clear error” or through the government’s motion based
on substantial assistance. See Fed. R. Crim. P. 35; United States
v. Townsend, 762 F.3d 641, 645 (7th Cir. 2014). Beyond that
rule, we have previously identified only two statutes that “ex-
pressly permit[]” modification under this exception. The first
is the statute authorizing appellate review of sentences, 18
U.S.C. § 3742(f)–(g), and the second is the statute permitting
collateral attack of sentences, 28 U.S.C. § 2255. See United
States v. Bailey, 777 F.3d 904, 906 (7th Cir. 2015). Before the
First Step Act, other circuits considering the question had
added only 28 U.S.C. § 2106, the general statute permitting
appellate review, and 28 U.S.C. § 2241, the general habeas cor-
pus statute. See United States v. Wirsing, 943 F.3d 175, 184 (4th
Cir. 2019) (collecting cases).
The third exception, § 3582(c)(2), allows the defendant or
the Bureau of Prisons to move to reduce a sentence for “a de-
fendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been low-
ered by the Sentencing Commission … if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The statute
itself allows modification only of a sentence that is “based on”
a sentencing range, so some sentencing agreements are ex-
cluded. See, e.g., Koons v. United States, 138 S. Ct. 1783, 1786
(2018). It also adopts the Sentencing Commission’s policy
statements, which are binding, not advisory. Dillon v. United
States, 560 U.S. 817, 819 (2010). These statements, among other
8 No. 19-2009
things, prohibit a sentence reduction if an amendment fails to
lower the defendant’s actual Guidelines range, require the
court to “substitute only the amendments … leav[ing] all
other guideline application decisions unaffected,” and limit
the court’s authority to vary below the amended range. See
U.S.S.G. § 1B1.10(a)(2)(B), (b)(1), (b)(2)(A).
Sutton’s pro se motion invoked § 3582(c)(2), but everyone
agrees that was the wrong vehicle. (This mistake is of no con-
sequence, as we review pro se filings by substance, not label.
United States v. Antonelli, 371 F.3d 360, 361 (7th Cir. 2004) (per
curiam).) Even in the district court, the government noted Sut-
ton wrongly relied on subsection (c)(2). Sutton joins that as-
sessment on appeal, as do we. Section 3582(c)(2) applies to
those whose sentencing ranges were reduced “by the Sentenc-
ing Commission.” Congress, though, not the Sentencing
Commission, promulgated the First Step Act and Fair Sen-
tencing Act. See Shaw, 957 F.3d at 743 (“[T]he First Step Act
does not include the limitations particular to § 3582(c)(2)”).
The parties also agree that § 3582(c)(1)(A) does not apply,
leaving only subsection (c)(1)(B) among the listed exceptions
to the general prohibition on modifying sentences. The gov-
ernment argues that § 3582(c)(1)(B) must, therefore, provide
the procedural vehicle under which § 404(b) of the First Step
Act operates to permit a modification to a term of imprison-
ment. Sutton offers a more nuanced argument. He contends
that the First Step Act is its own procedural vehicle. Though
he admits that § 3582(c)(1)(B) is relevant, he objects to the la-
bel “vehicle,” since the First Step Act independently author-
izes a court to impose a reduced sentence.
No. 19-2009 9
Sutton concedes that the difference between his and the
government’s position is mostly semantic. Still, we agree that,
to be precise, the First Step Act is its own procedural vehicle.
Section 3582(c)(1)(B) does not itself provide a basis for a
defendant to move for a sentence reduction. It provides only
that “the court may modify an imposed term of imprisonment
to the extent otherwise permitted by statute” or Rule 35. It of-
fers no relief and imposes no conditions, limits, or restrictions
on the relief permitted by that other statute or the Rule. See
United States v. Allen, 956 F.3d 355, 357 (6th Cir. 2020). Criti-
cally, and unlike the other two exceptions to § 3582(c), subsec-
tion (c)(1)(B) does not even refer to who can move for modifi-
cation or how. All that information is contained in the other
statute, here § 404(b) of the First Step Act.
Just compare those statutes that we and the other courts of
appeals have previously said “expressly permit[]” modifica-
tion of a term of imprisonment. 18 U.S.C. § 3582(c)(1)(B). They
include appellate review statues, 18 U.S.C. § 3742; 28 U.S.C.
§ 2106, and collateral attack statutes, 28 U.S.C. §§ 2241, 2255.
See Bailey, 777 F.3d at 906; Wirsing, 943 F.3d at 184. Sec-
tion 3582(c)(1)(B) is not the “vehicle” through which a defend-
ant seeks relief when he petitions for a writ of habeas corpus,
moves to vacate his sentence, or appeals. The petition, motion,
or appeal—and the statute authorizing each—is the vehicle,
and each has its own procedures and limitations unique to it.
So, too, with the First Step Act.
None of this is to say that § 3582(c)(1)(B) is irrelevant. The
government insists if we were to treat the First Step Act as its
own procedural vehicle, then that would amount to an im-
plied repeal of § 3582(c). Implied repeals are disfavored. E.g.,
Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018). The value
10 No. 19-2009
of § 3582(c)(1)(B), though, is precisely the fact that it allows us
to avoid implied repeal. It makes explicit what would other-
wise be implicit: the general prohibition against modification
of a term of imprisonment gives way to specific exceptions
without either repealing the other. In doing so, it does not au-
thorize relief; it just removes a potential obstacle to relief oth-
erwise authorized. See Kelley, 2020 WL 3168518, at *5
(“§ 3582(c)(1)(B) does not ‘implement’ the First Step Act.”).1
Our distinction is mostly semantic, so we do not split from
the Fourth Circuit. True, that court held that Ҥ 3582(c)(1)(B)
is the appropriate vehicle for a First Step Act motion.”
Wirsing, 943 F.3d at 183. But it said that in the context of re-
jecting the district court’s reliance on § 3582(c)(2). Id. at 182–
83. We agree with that conclusion for the reasons stated above
and in Shaw, 957 F.3d at 742–43. We differ not on substance,
but on the use of the word “vehicle” to describe the substan-
tive effect of § 3582(c)(1)(B). And our quibble with word
choice comes only from the nuanced positions the parties pre-
sent here. Given those positions, we might prefer the Second
Circuit’s phrasing, that § 3582(c)(1)(B) “provides the correct
framework.” Holloway, 956 F.3d at 661. It is, at most, the road
on which the First Step Act vehicle travels.
Beyond semantics, there is a conceptual advantage from
using the First Step Act as its own vehicle. Doing so clarifies
1Suttton goes a bit too far when he insists that § 3582(c) is inconsistent
with the First Step Act because it authorizes modifications of more than
the term of imprisonment. The First Step Act may give a district court dis-
cretion to modify an entire sentence, but the part of that discretion that
includes modifying the term of imprisonment is recognized by § 3582(c).
The statutes are consistent, even if § 3582(c)(1)(B) does not add anything.
No. 19-2009 11
that any limits on relief that the First Step Act authorizes must
come from interpretation of the First Step Act itself. See Kelley,
2020 WL 3168518, at *5; cf. United States v. Chambers, 956 F.3d
667, 671 (4th Cir. 2020) (reaching same result without this
framing); Allen, 956 F.3d at 357 (same).
The government asks us to hold that the First Step Act
must be read in conjunction with § 3582(c)(1)(B). We do not
disagree, but all § 3582(c)(1)(B) says is that a court may mod-
ify a term of imprisonment as “expressly permitted by stat-
ute.” So, to read the First Step Act in conjunction with
§ 3582(c)(1)(B) is just to read the First Step Act and assess what
it permits.
The only consequence the government perceives from
deeming § 3582(c)(1)(B) the appropriate vehicle is that a dis-
trict court would then be allowed to modify a sentence only
“to the extent … expressly permitted,” § 3582(c)(1)(B) (emphasis
added). In the government’s view, this language demands
that a court construe its discretion narrowly. Specifically, be-
cause the First Step Act authorizes a court only to impose a
sentence as if the Fair Sentencing Act were in effect, the gov-
ernment asserts that it does not allow changes to the rest of
the sentencing analysis. See United States v. Hegwood, 934 F.3d
414, 418 (5th Cir.) (adopting this rule), cert. denied, 140 S. Ct.
285 (2019); see also Kelley, 2020 WL 3168518, at *4 (same).
We express no opinion on whether the government’s pro-
posed limitations are appropriate. See Shaw, 957 F.3d at 742–
43 (similarly reserving question). The district court here had
not, in any meaningful sense, made findings on sentencing
12 No. 19-2009
issues for it to consider revisiting.2 Regardless of whether the
First Step Act offers a district court broad or only narrow dis-
cretion, the answer will not depend on § 3582(c)(1)(B).
Indeed, we have found no examples of an appellate court
using the language of § 3582(c)(1)(B) to cabin the district
court’s remedial powers under another statute, as the govern-
ment proposes. There is even some authority to the contrary.
See United States v. Triestman, 178 F.3d 624, 629 (2d Cir. 1999)
(concluding that § 3582(c)(1)(B) does not limit relief available
through habeas corpus petition). When a court grants collat-
eral relief or remands on appeal, resentencing can be either
plenary or limited depending on the court’s judgment and the
other statute. See, e.g., United States v. Adams, 746 F.3d 734,
743–45 (7th Cir. 2014) (discussing types of remands for resen-
tencing). Section 3582(c)(1)(B) is not part of that calculus.
Again, this conclusion does not separate us from the other cir-
cuits. The Fifth Circuit’s reasons for limiting district courts’
discretion had nothing to do with § 3582(c)(1)(B)—which it
did not even cite—and everything to do with the text of the
First Step Act. Hegwood, 934 F.3d at 418; see also Kelley, 2020
WL 3168518, at *4 (same). Even if one can debate whether the
Fifth Circuit’s reading is correct, the answer is in the First Step
Act, not § 3582(c).
2The government rightly notes that the Guidelines require a district
court to calculate a sentencing range before accepting a sentencing agree-
ment. U.S.S.G. § 6B1.2(c). That did not happen here, but we must take the
record we are given. A First Step Act motion is often “heavily reliant on a
previous explanation and record that was ‘not created with the current
statutory framework in mind.’” Shaw, 957 F.3d at 741 (quoting Allen, 956
F.3d at 358).
No. 19-2009 13
IV. Sutton’s Motion
With the procedural vehicle for Sutton’s motion identified,
we can address the district court’s ruling on it.
A district court has broad discretion in addressing a First
Step Act motion. The text of the statute provides that a court
“may … impose a reduced sentence.” First Step Act, § 404(b)
(emphasis added). The use of “may” is quintessential discre-
tionary language. E.g., Halo Elecs., Inc. v. Pulse Elecs., Inc., 136
S. Ct. 1923, 1931 (2016). If that were not enough, the Act itself
makes clear that “[n]othing in this section shall be construed
to require a court to reduce any sentence pursuant to this sec-
tion.” First Step Act, § 404(c); see also Shaw, 957 F.3d at 743 (“It
is for the district court, in its discretion, to undertake a ‘com-
plete review’ of [a] motion” under the First Step Act). It fol-
lows from the district court’s broad discretion that we review
the denial of a First Step Act motion for, at most, an abuse of
that discretion.
We see no such abuse here. Sutton contends, in his pro se
brief, that the government breached the sentencing agreement
by opposing his request to be resentenced to his new mini-
mum. The government, though, did not agree to any statutory
minimum; it agreed to the specific 180-month statutory mini-
mum in play at the time. The parties bargained away litiga-
tion risks. The government forfeited its opportunity to con-
vince the court that its higher recommended sentence was
warranted because of Sutton’s criminal activities, and Sutton
gave up the chance to vindicate himself of those activities. At
the time, this was a great deal for Sutton. Even if he did prove
the government’s accusations wrong, he still faced the 180-
month minimum to which he had acquiesced. The deal be-
came slightly worse after the First Step Act, as now he had
14 No. 19-2009
more to gain (though nearly as much to lose). Still, the court
was not obligated to let Sutton have his cake and eat it, too,
keeping his 180-month sentence while maintaining his argu-
ments for why it should be lower.
The sentencing agreement also distinguishes this case
from the Sixth Circuit’s recent decision in United States v.
Boulding, Nos. 19-1590 & 19-1706, 2020 WL 2832110, at *1 (6th
Cir. June 1, 2020). There, the Sixth Circuit found an abuse of
discretion in a superficially similar situation: a Guidelines dis-
pute abandoned at the initial sentencing but resolved in the
governmentʹs favor on a First Step Act motion. Id. at *1–2. In
Boulding’s case, though, his statutory minimum was life im-
prisonment, so he could make only “frivolous objections to
sentencing enhancements.” Id. at *2. Sutton’s objections were
never frivolous, since the alternative was a longer sentence
that might well have remained appropriate to this day. Even
if Sutton did not “withdraw” his objections, he chose to leave
the dispute unresolved in exchange for the certainty of a 180-
month sentence. The district court did not abuse its discretion
leaving him to that choice.
V. Conclusion
We conclude that the proper vehicle for Sutton’s motion
for a reduced sentence is § 404(b) of the First Step Act. Regard-
less of the vehicle, however, the district court did not abuse
its discretion in denying Sutton’s motion. Accordingly, we
AFFIRM the judgment.