United States v. Winfred Lorenzo Hunt

USCA11 Case: 19-14830 Date Filed: 09/09/2022 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14830
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WINFRED LORENZO HUNT,
a.k.a. Fatboy,
a.k.a. Big Dred,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:06-cr-80070-DMM-1
____________________
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2 Opinion of the Court 19-14830
Before JORDAN, JILL PRYOR, and MARCUS, Circuit Judges.
PER CURIAM:
A jury found Winfred Lorenzo Hunt guilty of multiple crack
cocaine and powder cocaine offenses. In 2007, the district court
imposed imprisonment sentences of life or 360 months for each of
the narcotics convictions. When Mr. Hunt moved for a sentence
reduction in 2019 under the First Step Act of 2018, Pub. L. No. 115-
391, § 404(b), 132 Stat. 5194, 5222, the district court denied the mo-
tion without reaching the merits. The court concluded that it
“lack[ed] jurisdiction” to modify Mr. Hunt’s two life sentences for
powder cocaine offenses because they were not “covered offenses”
under the Act and, therefore, any reduction on the crack cocaine
offenses would be “moot.” D.E. 1310 at 1–2. Because Mr. Hunt’s
motion was not moot, we vacate and remand for further proceed-
ings.
I
In 2006, Mr. Hunt and several co-defendants were indicted
for their roles in the possession and distribution of crack cocaine
and powder cocaine. Of the 36 charges against Mr. Hunt, all but
seven involved crack cocaine and two of those seven were dis-
missed at trial. Counts 30–34, for example, charged Mr. Hunt and
others with conspiracy to possess powder cocaine or possession of
powder cocaine with the intent to distribute.
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19-14830 Opinion of the Court 3
Prior to trial, the government filed an information under 21
U.S.C. § 851. The information notified Mr. Hunt that, because of
two prior narcotics convictions, he “face[d] a statutory mandatory
minimum penalty of life” as to Counts 1 and 24 and “a mandatory
minimum penalty of 10 years and a statutory maximum penalty of
life” as to Counts 25–34. See D.E. 715 at 2. A jury convicted Mr.
Hunt of all remaining charges against him except for Count 5.
The presentence investigation report indicated that Mr.
Hunt faced a mandatory minimum sentence of life imprisonment
on Counts 1, 24, and 34—not just Counts 1 and 24 as indicated in
the government’s § 851 notice—and his advisory guidelines range
regardless of those mandatory minimum sentences was 360
months to life imprisonment. Mr. Hunt did not object to these cal-
culations.
In 2007, the district court sentenced Mr. Hunt to life impris-
onment on Counts 1, 4, 6, 9, 12, 14–16, 18–20, 22–30, and 34, and
to 360 months imprisonment on the remaining counts. The court
ordered that these sentences run concurrently. With the exception
of Counts 30 and 34, all of the counts for which Mr. Hunt received
a life sentence involved crack cocaine.
II
The Fair Sentencing Act of 2010—made retroactive by the
First Step Act—“reduce[s] the sentencing disparity between drug-
trafficking crimes involving crack cocaine and those involving
powder cocaine” by increasing the quantities of crack cocaine
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4 Opinion of the Court 19-14830
required to trigger certain mandatory minimum sentences. See
United States v. Taylor, 982 F.3d 1295, 1298 (11th Cir. 2020). As
relevant here, § 404(b) of the First Step Act permits a district “court
that imposed a sentence for a covered offense” to “impose a re-
duced sentence as if sections 2 and 3 of the Fair Sentencing Act . . .
were in effect at the time the covered offense was committed.”
The First Step Act defines a “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).
In 2019, Mr. Hunt filed a motion for a sentence reduction
under the First Step Act. Through appointed counsel, he argued
that the district court should reduce his overall sentence under the
sentence package doctrine, which provides that courts can resen-
tence all intertwined counts when part of that sentence is unrav-
eled, such that the entire sentence package should be recalculated.
See, e.g., United States v. Fowler, 749 F.3d 1010, 1015 (11th Cir.
2014) (“The thinking is that when a conviction on one or more of
the component counts is vacated for good, the district court should
be free to reconstruct the sentencing package (even if there is only
one sentence left in the package) to ensure that the overall sentence
remains consistent with the guidelines, the § 3553(a) factors, and
the court’s view concerning the proper sentence in light of all the
circumstances.”). He also argued that the court should reduce his
other sentences regardless of his unmodified mandatory life sen-
tence on Count 34—the powder cocaine offense affected by the §
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19-14830 Opinion of the Court 5
851 notice—because “[n]o one can predict the future, and [he] may
one day benefit from a future change in the law to reduce non-vio-
lent, life drug offenses.” D.E. 1308 at 27–28.
Because the district court determined that Counts 30 and
34—the two powder cocaine counts for which Mr. Hunt received
a life sentence—were not covered offenses under the First Step Act,
it concluded that it “lack[ed] jurisdiction to reduce Mr. Hunt’s sen-
tence as to those counts,” meaning his “life sentence remains un-
changed.” D.E. 1310 at 1. As for Mr. Hunt’s sentences on the other
crack cocaine counts, the court reasoned that “[s]ince any reduc-
tion as to those counts would not affect Mr. Hunt’s present sen-
tence, [it saw] no reason to determine whether the remaining
counts should be reduced and [it denied] the request as to those
counts as moot without reaching the merits.” Id. at 1–2. This ap-
peal followed.
III
Exercising de novo review, see United States v. Al-Arian, 514
F.3d 1184, 1189 (11th Cir. 2008) (citing Sheely v. MRI Radiology
Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007)), we hold that
Mr. Hunt’s motion for a sentence reduction was not moot. We
leave additional questions for the district court’s consideration on
remand.
A
The district court denied Mr. Hunt’s motion “as moot with-
out reaching the merits.” D.E. 1310 at 2. We take the district court
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6 Opinion of the Court 19-14830
at its word that its ruling was based on mootness grounds, and
not—as the government urges—futility grounds. In our view, the
district court erred because it has the authority to reduce Mr.
Hunt’s sentences for his crack cocaine offenses, and a reduction of
those sentences would constitute meaningful relief.
A dispute is moot—and ceases to be a case or controversy
over which federal courts may exercise jurisdiction—“when it no
longer presents a live controversy with respect to which the court
can give meaningful relief.” Al Najjar v. Ashcroft, 273 F.3d 1330,
1336 (11th Cir. 2001). See also Al-Arian, 514 F.3d at 1189 (same).
Here, there is no dispute that Mr. Hunt is currently serving multi-
ple life sentences for crack cocaine offenses which are eligible for
reduction under the First Step Act. As we explained in Taylor, eli-
gibility for First Step Act relief is “condition[ed] . . . on the movant’s
offense, rather than on . . . the applicable sentencing range.” 982
F.3d at 1300. What Mr. Hunt’s new sentence could or should be,
given his sentences for other convictions, is not relevant for First
Step Act eligibility purposes.
A term of “incarceration . . . constitutes a concrete injury,
caused by the conviction and redressable by invalidation of the con-
viction” or, as here, by the imposition of a reduced sentence. See
Spencer v. Kemna, 523 U.S. 1, 7 (1998). The existence of other con-
current terms of incarceration does not change that. As the Su-
preme Court has explained, “the existence of concurrent sentences
does not remove the elements necessary to create a justiciable case
or controversy” when the plaintiff challenges one of those
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19-14830 Opinion of the Court 7
convictions or sentences. See Benton v. Maryland, 395 U.S. 784,
790 (1969). This is because “most criminal convictions . . . entail
adverse collateral legal consequences,” such as to enhance a later
sentence or to impeach one’s character in a trial. See Sibron v. New
York, 392 U.S. 40, 55 (1968). The “mere ‘possibility’” of such con-
sequences is enough to make out a case or controversy. Id. See
also Benton, 395 U.S. at 790–91; Chafin v. Chafin, 568 U.S. 165, 175
(2013) (“Enforcement of the order may be uncertain . . . but such
uncertainty does not typically render cases moot. Courts often ad-
judicate disputes where the practical impact of any decision is not
assured.”); Mission Prod. Holdings, Inc. v. Tempnology, LLC, 139
S. Ct. 1652, 1661 (2019) (finding suit for money damages against an
insolvent defendant is not moot, noting that “courts often adjudi-
cate disputes whose practical impact is unsure at best”) (internal
citations and punctuation omitted).
Mr. Hunt only gets one chance to reduce his crack cocaine
convictions under the First Step Act. “‘[A] defendant can file only
one motion for resentencing” under the Act, and a second motion
is barred “if the first was denied after a complete review . . . on the
merits.” United States v. Denson, 963 F.3d 1080, 1087 (11th Cir.
2020) (internal quotation marks and citation omitted, and emphasis
removed), abrogated in part by Concepcion v. United States, No.
20-1650, 2022 WL 2295029 at *6 & n.2, *12 (U.S. June 27, 2022). A
remand is necessary to give the district court the opportunity to
reach the merits of Mr. Hunt’s motion as to his crack cocaine of-
fenses, which may be necessary to reduce his overall time in prison
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8 Opinion of the Court 19-14830
if he is to “one day benefit from a future change in the law” as to
his powder cocaine offenses. See D.E. 1308 at 27–28.
We acknowledge—without voicing any views on the mat-
ter—the possibility that a district court could decline to pass on the
merits of a motion for First Step Act relief in a case like this one
under the concurrent sentence doctrine. Under the doctrine, a
court need not rule on the validity of one conviction or the propri-
ety of one sentence if it determines that such a correction would
have no “collateral consequences.” Benton, 395 U.S. at 790. The
Supreme Court made clear in Benton that the concurrent sentence
doctrine is not jurisdictional, but it noted that it “may have some
continuing validity as a rule of judicial convenience.” 395 U.S. at
791. See also In re Davis, 829 F.3d 1297, 1299 (11th Cir. 2016) (not-
ing that this is the doctrine’s “only” continuing validity). Indeed,
the Supreme Court and our court occasionally invoke the concur-
rent sentence doctrine as such a tool. See, e.g., Barnes v. United
States, 412 U.S. 837, 848 (1973) (“Although affirmance of peti-
tioner’s conviction on two of the six counts carrying identical con-
current sentences does not moot the issues he raises pertaining to
the remaining counts, . . . we decline as a discretionary matter to
reach these issues.”); United States v. Bradley, 644 F.3d 1213, 1294
(11th Cir. 2011) (declining to address challenges to two counts
where the defendant’s term of imprisonment and fines would not
change, so the defendant “would suffer no adverse collateral con-
sequences from our refusal to review”). But see In re Davis, 829
F.3d at 1299–1300 (declining to apply the concurrent sentence
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19-14830 Opinion of the Court 9
doctrine where the court’s sentencing decision on one sentence
was “no doubt informed by” the challenged one).
Perhaps we could read the district court’s characterization
of Mr. Hunt’s motion as “moot” as an application of the concurrent
sentence doctrine, but that would be improper for a number of rea-
sons. First, the district court never invoked the doctrine and the
government does not raise it as a basis for affirmance on appeal.
Second, and more importantly, when it is unclear from the record
whether the district court understood its authority to grant a sen-
tence reduction under the First Step Act we generally vacate and
remand for further proceedings. See United States v. Russell, 994
F.3d 1230, 1239 (11th Cir. 2021) (“In this case, we must vacate and
remand because the record is ambiguous as to whether the district
court understood its authority to reduce Russell’s sentence.”).
Here, the district court said that it “lack[ed] jurisdiction” over Mr.
Hunt’s motion for a sentence reduction. D.E. 1310 at 1. As we
have explained, that is incorrect. The court’s focus on its ability to
reduce Mr. Hunt’s overall time in prison—“which goes to . . . the
legal availability of a certain kind of relief—confuses mootness with
the merits.” Chafin, 568 U.S. at 174. See also United States v. Win-
ters, 986 F.3d 942, 949 (5th Cir. 2021) (“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.”).
B
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10 Opinion of the Court 19-14830
This leaves two additional wrinkles in Mr. Hunt’s request
for relief.
First, the government argues that Mr. Hunt’s First Step Act
motion was futile given his life sentences for two uncovered, pow-
der cocaine offenses—Counts 30 and 34—and asks us to affirm on
that basis. But whether the district court can reduce sentences for
non-covered offenses when a defendant is eligible for a reduction
on covered offenses is an open question.
We previously stated in Denson that a district court “is not
free to[, among other things,] change the defendant’s sentences on
counts that are not ‘covered offenses.’” See 963 F.3d at 1089. But
that language was dicta unnecessary to our holding because the is-
sue in that case was whether the district court was required to hold-
ing a hearing. See id. at 1082 (“The issue on appeal is whether the
district court is required to first hold a hearing at which Denson
was present.”). The Seventh Circuit has held that there is nothing
in the statute’s text that “bar[red] a court from reducing a non-cov-
ered offense” once it elected to resentence the covered offenses.
United States v. Hudson, 967 F.3d 605, 610 (7th Cir. 2020). See also
United States v. Chambers, Nos. 21-1331/1378, 2022 WL 612805,
at *6 (6th Cir. Mar. 2, 2022) (Clay, J., dissenting) (agreeing with the
Seventh Circuit). The Tenth Circuit takes the opposite view. See
United States v. Gladney, _ F.4th _, 2022 WL 3348631, at *8 (10th
Cir. Aug. 15, 2022) (“[T]he First Step Act prohibits a district court
from reducing the sentence on a non-covered offense, even
if . . . the covered and non-covered offenses were grouped together
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19-14830 Opinion of the Court 11
under the Sentencing Guidelines and the covered offense effec-
tively controlled the sentence for the non-covered offense.”). We
decline to resolve this issue today.
The Supreme Court recently abrogated in part our decision
in Denson and held that “[n]othing in the text and structure of the
First Step Act expressly, or even implicitly overcomes the estab-
lished tradition of district courts’ sentencing discretion.” Concep-
cion, 2022 WL 2295029, at *9. Should the district court exercise its
discretion to reduce the sentences for Mr. Hunt’s crack cocaine of-
fenses, it should consider in the first instance whether it can reduce
Mr. Hunt’s other, non-covered offenses in light of the Supreme
Court’s recent decision in Concepcion.
Second, the government emphasizes that Mr. Hunt’s life
sentence for Count 34 was mandated by statute due to the notice
filed by the government pursuant to 21 U.S.C. § 851. The parties
contest the validity of that notice and the district court’s authority
to address it in a First Step Act proceeding. We need not resolve
these disputes, as they only come into play if the court exercises its
discretion to reduce the covered crack cocaine offenses in the first
place.
III
Because Mr. Hunt is eligible for a sentence reduction under
the First Step Act, his motion was not moot.
VACATED AND REMANDED.
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19-14830 Marcus, J., Concurring 1
MARCUS, Circuit Judge, concurring:
I agree with the judgment in this case, but write separately
to highlight one area of disagreement with the panel’s opinion. I
concur in the conclusion that Winfred Hunt’s motion for a sen-
tence reduction is not moot because the district court can exercise
its discretion to resentence Hunt under the First Step Act of 2018
(“FSA”). However, in my view, the FSA provides the district court
with no authority to resentence Hunt for his non-covered offenses
involving powder cocaine. Put differently, I do not share the ma-
jority’s opinion that “whether the district court can reduce sen-
tences for non-covered offenses when a defendant is eligible for a
reduction on covered offenses is an open question.” See Maj. Op.
at 10.
A district court generally lacks the authority to modify a
term of imprisonment, unless a statute expressly permits it to do
so, or unless other rare exceptions -- which Hunt has not invoked -
- apply. See 18 U.S.C. § 3582(c); Fed. R. Crim. P. 35; see also United
States v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020). Hunt has
moved for a reduction in his sentence under the FSA only.
Section 404 of the FSA allows a district court to reduce a
qualifying defendant’s sentence for “covered” offenses -- those with
“statutory penalties . . . [that] were modified by section 2 or 3 of
the Fair Sentencing Act of 2010.” Pub. L. No. 115-391, 132 Stat.
5194, 5222; see also Maj. Op. at 4. Sections 2 and 3 of the Fair Sen-
tencing Act, in turn, authorize a reduction in sentences for offenses
involving cocaine base, colloquially known as crack. Pub. L. No.
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2 Marcus, J., Concurring 19-14830
111-220, 124 Stat. 2372, 2372; see also Jones, 962 F.3d at 1298. No-
where does the FSA empower a sentencing court to consider re-
sentencing a defendant on a separate “non-covered” offense that
does not involve crack.
In United States v. Denson, a panel of this Court explained
that a district court “is not free to . . . change the defendant’s sen-
tences on counts that are not ‘covered offenses.’” 963 F.3d 1080,
1089 (11th Cir. 2020), abrogated in part by Concepcion v. United
States, 142 S. Ct. 2389 (2022). I do not share the majority’s opinion
that this language is mere dicta. In Denson, we used the term “in-
dependent holding” to describe our conclusion that, because the
court lacked authority to resentence the defendant on non-covered
counts under the FSA, the defendant did not establish each element
of his due process claim. Id. at 1088–89 (citing United States v.
Brown, 879 F.3d 1231 (11th Cir. 2018)).1 But even if Denson’s pro-
nouncement about resentencing a defendant on non-covered of-
fenses was merely dicta, it is still the only logical conclusion; a dis-
trict court must have statutory or rulemaking authority to resen-
tence a defendant, and the FSA grants limited authority to alter a
defendant’s sentence only for covered offenses. Our reading of
Denson comports with the Tenth Circuit’s view that “the First Step
Act prohibits a district court from reducing the sentence on a non-
1 “[I]n this circuit[,] additional or alternative holdings are not dicta, but instead
are as binding as solitary holdings.” Bravo v. United States, 532 F.3d 1154,
1162 (11th Cir. 2008).
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19-14830 Marcus, J., Concurring 3
covered offense,” even in the event that “the covered and non-cov-
ered offenses were grouped together under the Sentencing Guide-
lines and the covered offense effectively controlled the sentence for
the non-covered offense.” United States v. Gladney, _ F.4th _, 2022
WL 3348631, at *8 (10th Cir. Aug. 15, 2022).
It is true that the Supreme Court’s recent decision in Con-
cepcion v. United States abrogated Denson in part. While we
stated in Denson that the FSA does not permit plenary resentenc-
ing, the Supreme Court clarified in Concepcion that “[n]othing in
the text and structure of the First Step Act expressly, or even im-
plicitly, overcomes the established tradition of district courts’ sen-
tencing discretion,” which is broadly defined to include “con-
sider[ing] all relevant information” during both the sentencing and
resentencing processes. 142 S. Ct. at 2398, 2401. Concepcion’s
holding does not, however, end the analysis in this case.
The defendant in Concepcion was sentenced for only one
crime -- the distribution of five or more grams of crack cocaine --
which was a “covered” offense under the FSA. Id. at 2396. Nothing
in Concepcion can fairly be read to leave open the question of
whether a district court has the power to reduce a defendant’s sen-
tence pursuant to the FSA on a non-covered count. The Supreme
Court had no occasion to consider that question in Concepcion.
The sole issue the Supreme Court decided was “whether a district
court adjudicating a motion under the First Step Act may consider
other intervening changes of law (such as changes to the Sentenc-
ing Guidelines) or changes of fact (such as behavior in prison) in
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4 Marcus, J., Concurring 19-14830
adjudicating a First Step Act motion.” Id. Concepcion’s prescrip-
tion that a district court may “consider intervening changes of law
or fact” in resentencing a defendant under the FSA applies only to
those crimes on which the district court has the power to resen-
tence in the first place. Id. at 2404. That category is limited to
“covered” offenses, as defined by the FSA. See id. at 2401. I do not
see how a district court would have the power to go beyond “cov-
ered” offenses in reducing a sentence under the FSA. As the Su-
preme Court put it in Concepcion, “[a] district court cannot . . .
recalculate a movant’s benchmark Guidelines range in any way
other than to reflect the retroactive application of the Fair Sentenc-
ing Act.” Id. at 2402 n.6.
In this case, Hunt was sentenced on multiple counts involv-
ing crack, as well as multiple counts involving powder cocaine, two
of which -- Counts 30 and 34 -- carried life sentences. While the
district court may alter Hunt’s sentences on the crack counts, the
trial court lacks any authority, based on the FSA, to alter Hunt’s
sentences on the powder counts. I would caution the district court
to adopt a less expansive view of its resentencing discretion in rul-
ing on Hunt’s motion to reduce his sentence under the FSA.