United States v. Tanesha Holder ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3418
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Tanesha Holder, also known as Tanesha Renee Holder
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 21, 2020
Filed: December 1, 2020
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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LOKEN, Circuit Judge.
In 2008, Tanesha Holder pleaded guilty to conspiracy to distribute at least 50
grams of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. She now
appeals an order denying a motion to reduce her sentence pursuant to Section 404 of
the First Step Act of 2018. Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018).
Section 404(b) provides that, if the statutory penalty for an offense was modified by
section 2 or 3 of the Fair Sentencing Act of 2010 (Pub. L. No. 111-220, 124 Stat.
2372), the district court may “impose a reduced sentence as if sections 2 and 3 . . .
were in effect at the time the covered offense was committed.” The Fair Sentencing
Act increased from 50 to 280 grams the minimum quantity of cocaine base that calls
for a sentence mandated by § 841(b)(1)(A). Thus, as the government now concedes,
Holder is eligible for First Step Act relief. See United States v. Banks, 960 F.3d 982,
984 (8th Cir. 2020); United States v. McDonald, 944 F.3d 769, 771 (8th Cir. 2019).
Most of Holder’s arguments on appeal were rejected in our recent decisions
resolving First Step Act issues. However, we agree with her contention that the
district court erred in determining her amended guidelines sentencing range under the
Fair Sentencing Act. As the record does not permit us to determine whether this error
was harmless under the Supreme Court’s rigorous standard governing procedural
Guidelines errors, we remand for resentencing. See United States v. Harris, 908 F.3d
1151, 1155-56 (8th Cir. 2018).
As part of her plea, Holder admitted responsibility for at least 1.5 kilograms of
cocaine base. The PSR, which the district court adopted, attributed a much larger
quantity to Holder. The district court determined that Holder’s advisory guidelines
sentencing range was 360 months to life imprisonment because the guidelines range
was greater than her career offender range. But the court varied downward,
sentencing Holder to 300 months imprisonment, because “the Guideline sentencing
system inadequately addresses the circumstances of this defendant, making the
sentencing range substantively unreasonable.”
In 2010, Holder moved for a reduced sentence under 18 U.S.C. § 3582(c)(2),
arguing that, under a retroactive amendment to the Guidelines, her “current
sentence . . . is greater than the maximum established in the revised guideline range
of the Fair Sentencing Act.” The district court denied a reduction: “Because this
defendant did not receive a sentence within her applicable guideline range and
because she received a variance to a sentence that is consistent with her amended
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sentencing guideline range, the court concludes that she is not entitled to further
relief.” However, in December 2014, the district court sua sponte reduced Holder’s
sentence to 292 months under § 3582(c)(2) in response to USSG Amendment 782.
The order recited that Holder’s amended guideline range was 292 to 365 months and
explained that, because she received a variance when originally sentenced, the court
could not “reduce the defendant’s term of imprisonment . . . to a term that is less than
the minimum of the amended guideline range.” USSG § 1B1.10(b)(2)(A).
In February 2019, the district court referred Holder’s pending pro se motion
for First Step Act relief to the Federal Public Defender’s Office. In May, the court
sent the parties a proposed order reducing supervised release to eight years, but
otherwise denying relief. Holder objected to the calculation of the revised
Amendment 782 guideline calculation, urged the court to resentence her under the
career offender guidelines, with a comparable variance, and requested an opportunity
to brief the issue. On October 30, the court denied relief, without resolving the
amended guidelines range issue, because:
Drug quantity and criminal history, among other things, drove the
defendant’s sentencing guideline range and sentencing. . . . Her
sentence has never been based upon or informed by the 240 month
mandatory minimum term of incarceration applicable at the time of her
original sentencing. In her plea agreement, the defendant admitted to
responsibility for more than 1.5 kilograms of crack cocaine, more than
five times the amount necessary to trigger a mandatory minimum term
. . . of ten years after the Fair Sentencing Act of 2010.
On appeal, Holder argues the district court erred by misapprehending its broad
First Step Act discretion to grant a sentence reduction, and by failing to consider an
expansive array of factors relevant to exercise of that discretion, including the 18
U.S.C. § 3553(a) factors. These arguments are foreclosed by our recent decisions,
including United States v. Booker, 974 F.3d 869 (8th Cir. 2020); United States v.
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Hoskins, 973 F.3d 918 (8th Cir. 2020); United States v. Moore, 963 F.3d 725, 727
(8th Cir. 2020); and United States v. Banks, 960 F.3d 982, 985 (8th Cir. 2020).
The First Step Act permits but “does not mandate that district courts analyze
the section 3553 factors for a permissive reduction in sentence.” Hoskins, 973 F.3d
at 921. So long as the record reveals that the district court “expressly recognized and
exercised its discretion,” it need not “make an affirmative statement acknowledging
its broad discretion under Section 404.” Booker, 974 F.3d at 871, citing Banks, 960
F.3d at 985. The standard for our review is whether the district court “set forth
enough to satisfy the appellate court that he has considered the parties’ arguments and
has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id.,
quoting Rita v. United States, 551 U.S. 338, 356 (2007); see Moore, 963 F.3d at 728.
It has done so here, stating that it was denying First Step Act relief because “drug
quantity and criminal history” motivated the original sentencing decision, rather than
the mandatory minimum penalty modified by the Fair Sentencing Act. Holder’s
assertion that the court did not actually exercise discretion is without merit. See
Hoskins, 973 F.3d at 921.
Holder’s contention that the district court committed substantial procedural
error by miscalculating her revised Amendment 782 sentencing guideline range
requires a closer look. When the district court sua sponte reduced Holder’s sentence
to 292 months in 2014, it properly applied 18 U.S.C. § 3582(c)(2) and USSG
§ 1B1.10 because the Fair Sentencing Act, enacted in 2010, did not retroactively
apply to Holder’s 2008 sentence. See Dorsey v. United States, 567 U.S. 260 (2012).
Applying retroactive Guidelines Amendment 782, the court’s order declared that
Holder’s amended guideline range was 292-365 months, based on an amended total
offense level of 35.
The total offense level of 35 was predicated on base offense level 36, which
applies to at least 8.4 kilograms but less that 25.2 kilograms of cocaine base. See
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USSG § 2D1.1(c). The PSR had attributed 8.95 kilograms to Holder. But in denying
§ 3582(c)(2) relief in 2012, the district court found that “the record does not currently
support a finding of more than 4.5 kilograms of crack cocaine attributable to this
defendant.” Building on that finding to support a First Step Act reduction, Holder
argued to the district court and on appeal that 4.5 kilograms of cocaine base falls
within base offense level 34, which results in an amended guideline range of 240-293
months (because of the 20 year mandatory minimum), yielding a revised Amendment
782 range of 262-327 months determined under the career offender provisions. See
USSG § 4B1.1(b). The government’s response to this argument is incoherent, leading
us to suspect the government agrees with Holder’s guidelines recalculation but is
unwilling to admit it. The district court’s Order denying First Step Act relief
acknowledged but did not address the merits of this issue:
Pursuant to the First Step Act, the defendant requests that the court
reconsider its 2014 ruling pursuant to Guideline amendment 782,
sentence the defendant pursuant to the career offender sentencing
guidelines and impose a variance from those guidelines . . . .
The relief requested by the defendant is more than that contemplated by
the retroactive relief of the Fair Sentencing Act granted by the First Step
Act. If the First Step Act were found to permit the relief requested by
the defendant, the court would exercise its discretion to decline such
relief.
We disagree with the court’s conclusion that correcting an erroneous
determination of Holder’s revised Amendment 782 guideline range “is more than that
contemplated” by the First Step Act’s grant of retroactive Fair Sentencing Act relief.
The First Step Act directs the court to consider a Section 404 motion “as if sections
2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense
was committed.” Amendment 782 modified the determination of a defendant’s
advisory guidelines range to reflect the Fair Sentencing Act’s amendment of the
minimum statutory penalties. See USSG App. C at 66-68 (Supp. 2018). When a
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defendant such as Holder is eligible for Section 404 relief, the First Step Act requires
the court to determine the amended guidelines range before exercising its discretion
whether to grant relief. A mistake in that determination, like any other guidelines
mistake, is procedural error.
The question remains whether the court’s error in calculating the Fair
Sentencing Act amended guidelines range is harmless. That is not an easy question.
On the one hand, the district court gave strong reasons to deny a First Step Act
reduction, adding that it would deny relief “[i]f the First Step Act were found to
permit the relief requested by the defendant.” On the other hand, if Holder’s
recalculation is correct (an issue we leave for the district court on remand), then her
amended range becomes 262-327 months, rather than 292-365 months. The court
granted a substantial variance initially because “the Guideline sentencing system
inadequately addresses the circumstances of this defendant.” In 2014, it sua sponte
granted an Amendment 782 reduction to the bottom of an amended range that may
have been erroneously determined. If the court were to address the issue and
determine that the correct amended range is 262-327 months under the First Step Act,
we cannot say with confidence that this would not affect the court’s discretionary
ruling.
The Supreme Court has cautioned: “When a defendant is sentenced under an
incorrect Guidelines range -- whether or not the defendant’s ultimate sentence falls
within the correct range -- the error itself can, and most often will, be sufficient to
show a reasonable probability of a different outcome absent the error.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) (emphasis added). The Court
reinforced that caution in Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907
(2018). The harmless error issue is fact-intensive, and the Court has recognized that
some Guidelines errors may in fact be harmless. But “[w]e read Molina-Martinez and
Rosales-Mireles as strongly cautioning courts of appeals not to make . . . assumptions
. . . as to what the district court might have done had it considered the correct
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Guidelines range.” Harris, 908 F.3d at 1156. Without intending to constrain the
district court’s exercise of its First Step Act discretion, we conclude such caution is
appropriate here and therefore remand to permit the court to further consider this
issue.
The Order of the district court dated October 30, 2019, is vacated and the case
is remanded for such further proceedings as the district court may find appropriate.
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