United States v. Bobby Banks ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1750
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Bobby Glenn Banks,
lllllllllllllllllllllDefendant - Appellant.
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No. 19-1969
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United States of America,
lllllllllllllllllllllPlaintiff - Appellant,
v.
Bobby Glenn Banks,
lllllllllllllllllllllDefendant - Appellee.
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Appeals from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 14, 2020
Filed: May 28, 2020
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Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges.
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COLLOTON, Circuit Judge.
Bobby Banks appeals a judgment of the district court* imposing a reduced
sentence under the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194.
Although the court reduced his sentence from 55 years’ to 40 years’ imprisonment,
Banks argues that the court should have lowered it further. The government cross-
appeals the district court’s decision that Banks was eligible at all for a reduced
sentence. We conclude that there was no reversible error, and we affirm the
judgment.
In 2006, a jury found Banks guilty of conspiracy to distribute 50 grams or more
of cocaine base. 21 U.S.C. §§ 846, 841(b)(1)(A) (1999). The court calculated an
advisory guideline sentence of life imprisonment, but the court sentenced Banks to
55 years. This court affirmed the judgment. United States v. Banks, 494 F.3d 681,
687 (8th Cir. 2007). In a later proceeding, the district court denied Banks’s motion
to modify his sentence under 18 U.S.C. § 3582(c)(2). The court found that Banks was
accountable for at least 2.8 kilograms of crack cocaine under the guidelines, and that
a retroactive amendment to the guidelines would not affect his advisory sentencing
range. R. Doc. 976, at 2; see United States v. Banks, 501 F. App’x 606 (8th Cir.
2013) (per curiam).
Under the First Step Act, a court that imposed a sentence for an offense whose
penalties were modified by the Fair Sentencing Act of 2010 may impose a reduced
sentence. Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222. The district court
determined that Banks was eligible for a reduction, because the statutory maximum
*
The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, now retired.
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punishment for his offense—conspiracy to distribute 50 grams of cocaine base—was
reduced from life imprisonment to forty years by the Fair Sentencing Act. See 21
U.S.C. § 841(b)(1)(B)(iii); Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372.
The district court calculated a new advisory guideline range of 360 to 480
months’ imprisonment, and imposed a new sentence of 480 months. The court
determined that a sentence below the advisory range was not appropriate because
“[o]perating a long-standing drug operation, lengthy and significant gang affiliation,
and repeated death threats to individuals are the types of behavior that require a
severe sentence.” R. Doc. 1091, at 6. The district court permissibly resolved the
motion without a hearing. United States v. Williams, 943 F.3d 841, 843-44 (8th Cir.
2019).
The government argues that Banks is not eligible for a reduced sentence,
because he was accountable for 2.8 kilograms of cocaine base, and the Fair
Sentencing Act did not reduce the penalties for an offender responsible for that drug
quantity. This contention is foreclosed by United States v. McDonald, 944 F.3d 769(8th Cir. 2019), which held that the First Step Act “applies to offenses, not conduct,”
so it is the defendant’s statute of conviction that determines his eligibility for relief.
Id. at 772. Because the statute of conviction in Banks’s case required only proof that
he conspired to distribute 50 grams or more of cocaine base, and the Fair Sentencing
Act reduced the penalties for a 50-gram conspiracy, he is eligible for a reduction.
In fashioning the reduced sentence for Banks, the district court explained that
the most significant facts regarding Banks’s history and characteristics were “his gang
affiliation and repeated threats to other individuals.” Banks became a member of the
23rd Street Crips gang at age 13 and was known by law enforcement as “the enforcer
and #1 Combat Soldier” at the time of his arrest in this case. One witness testified
that Banks had pressed a gun to her head and threatened to kill her if she cooperated
with law enforcement. Other evidence showed that Banks threatened a detective and
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his family. Records from the Bureau of Prisons reported that Banks threatened to kill
a staff member in 1995. Banks absconded while on pretrial release in this case, and
he attempted to persuade several witnesses to give false testimony that would
exonerate him. The district court also concluded that Banks’s criminal history points
under the guidelines did not accurately reflect the seriousness of his criminal history.
Banks argues that the court abused its discretion by failing to consider his post-
sentencing rehabilitation, his difficult childhood, and the alleged disparity between
his sentence and the sentences imposed on other drug traffickers. While a district
court may reduce a sentence based on post-sentencing rehabilitation, a court is not
required to do so. Williams, 943 F.3d at 844. The district court did not discuss
Banks’s argument on this point, but the court never indicated that it lacked authority
to consider evidence of rehabilitation.
Resentencing is not warranted on this record, for “not every reasonable
argument advanced by a defendant requires a specific rejoinder by the judge.” United
States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008). We presume that a district court
has considered the arguments raised by a defendant, United States v. Timberlake, 679
F.3d 1008, 1012 (8th Cir. 2012), and the court here implicitly rejected Banks’s
contention that earning a certificate in General Education Development, completing
education and personal betterment courses, and other mitigating factors warranted a
greater reduction. If Banks had presented unusually strong evidence of rehabilitation,
then the court may well have addressed it explicitly. But the court concluded that a
sentence within the advisory range was appropriate in light of several aggravating
factors, and no further explanation was required. See Rita v. United States, 551 U.S.
338, 356-57 (2007).
The judgment of the district court is affirmed.
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