United States v. Michael Jerome Files

USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 1 of 35
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12859
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL JEROME FILES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 2:97-cr-00099-WS-B-10
____________________
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 2 of 35
2 Opinion of the Court 21-12859
Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges. *
NEWSOM, Circuit Judge:
The First Step Act of 2018 allows federal courts to reduce
certain drug-related criminal sentences. In particular, § 404(b) of
the Act permits “[a] court that imposed a sentence for a covered
offense” to “impose a reduced sentence as if sections 2 and 3 of the
Fair Sentencing Act of 2010 . . . were in effect at the time the cov-
ered offense was committed.” This case presents the following
question: For what offenses may a court “impose a reduced sen-
tence” under § 404(b)—only “covered offenses,” all offenses, or
some unspecified middle-ground subset of offenses?
Before we can answer that question, though, we have to de-
cide whether this Court has already answered it in a way that binds
us. In United States v. Denson, a panel of this Court said that a
district court “is permitted to reduce a defendant’s sentence” under
§ 404(b) “only on a ‘covered offense’” and “is not free . . . to change
the defendant’s sentences on counts that are not ‘covered of-
fenses.’” 963 F.3d 1080, 1089 (11th Cir. 2020) (citations omitted).
The parties here vigorously dispute whether that statement con-
trols our decision. Applying our prior-panel-precedent rule, we
must determine whether the Denson panel’s statement was a hold-
ing and, if it was, whether the Supreme Court’s intervening
* Judge Luck joins the opinion of the Court except for Section II.A.2.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 3 of 35
21-12859 Opinion of the Court 3
decision in Concepcion v. United States, 142 S. Ct. 2389 (2022), ab-
rogated it. Although the first question turns out to be somewhat
more complicated than at first it may appear, we conclude (1) that
Denson’s statement was a holding and (2) that Concepcion did not
abrogate it—and, accordingly, that we are obliged to follow it.
I
A
Federal law makes it illegal to sell a “controlled substance”
without authorization. 21 U.S.C. § 841(a). The baseline penalties
for violations are set forth in § 841(b)(1)(C). Larger quantities of
drugs authorize (and sometimes require) higher penalties. Id.
§ 841(b)(1)(A), (B). But these quantities vary from one drug to an-
other. Before 2010, it took a hundred times more powder cocaine
than crack cocaine to trigger the increased penalties. See Anti-
Drug Abuse Act of 1986, Pub. L. No. 99–570, § 1302, 100 Stat. 3207,
3207-16. Public outcry about that discrepancy—and, in particular,
its racially disparate impact—led Congress to pass the Fair Sentenc-
ing Act of 2010. See Dorsey v. United States, 567 U.S. 260, 268
(2012). Section 2 of that statute increased the quantity of crack co-
caine required to trigger heightened penalties—but it did so only
prospectively. See Fair Sentencing Act of 2010, Pub. L. No. 111-
220, § 2, 124 Stat. 2372.
In 2018, Congress adopted the First Step Act to make these
changes retroactive. See Pub. L. No. 115-391, § 404, 132 Stat. 5194,
5222 (2018). Section 404 of the Act—at issue here—comprises
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 4 of 35
4 Opinion of the Court 21-12859
three subsections. The first two are particularly relevant to what
we’ll call the “Denson issue.” Section 404(b), the operative provi-
sion, allows “[a] court that imposed a sentence for a covered of-
fense” to “impose a reduced sentence as if sections 2 and 3 of the
Fair Sentencing Act of 2010 . . . were in effect at the time the cov-
ered offense was committed.” Id. § 404(b). Section 404(a), the def-
initional provision, explains that the term “covered offense” means
“a violation of a Federal criminal statute, the statutory penalties for
which were modified by section 2 or 3 of the Fair Sentencing Act
of 2010.” Id. § 404(a). 1 Because their penalties were “modified by
section 2 or 3 of the Fair Sentencing Act,” crack-cocaine offenses
are “covered offenses”; powder-cocaine offenses, whose penalties
were not changed in the Fair Sentencing Act, are not “covered of-
fenses.” See United States v. Taylor, 982 F.3d 1295, 1299 (11th Cir.
1 The complete text of § 404’s first two subsections:
(a) Definition of Covered Offense.—In this section, the term
“covered offense” means a violation of a Federal criminal stat-
ute, the statutory penalties for which were modified by section
2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111-220;
124 Stat. 2372), that was committed before August 3, 2010.
(b) Defendants Previously Sentenced.—A court that imposed
a sentence for a covered offense may, on motion of the defend-
ant, the Director of the Bureau of Prisons, the attorney for the
Government, or the court, impose a reduced sentence as if sec-
tions 2 and 3 of the Fair Sentencing Act of 2010 (Public Law
111-220; 124 Stat. 2372) were in effect at the time the covered
offense was committed.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 5 of 35
21-12859 Opinion of the Court 5
2020), abrogated on other grounds by Concepcion, 142 S. Ct. at
2396.
Separately, § 404(c)—which will become relevant to what
we’ll call the “Concepcion issue”—precludes successive motions
and clarifies that relief is discretionary:
Limitations.—No court shall entertain a motion
made under this section to reduce a sentence if the
sentence was previously imposed or previously re-
duced in accordance with the amendments made by
sections 2 and 3 of the Fair Sentencing Act of 2010 or
if a previous motion made under this section to re-
duce the sentence was, after the date of enactment of
this Act, denied after a complete review of the motion
on the merits. Nothing in this section shall be con-
strued to require a court to reduce any sentence pur-
suant to this section.
Id. § 404(c) (citation omitted).
B
In 1997, a jury convicted Michael Files of eighteen federal
drug crimes involving crack cocaine, powder cocaine, and mariju-
ana. A district judge sentenced him to life in prison on eleven
counts, forty years on three counts, and twenty years or less on the
other four counts—all to run concurrently. In 2017, the judge re-
duced Files’s sentences to reflect retroactive guidelines changes,
trimming the life and forty-year sentences to a bottom-of-the-re-
vised-guidelines-range thirty years.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 6 of 35
6 Opinion of the Court 21-12859
In 2019, Files sought a further reduction under the First Step
Act. By that time, he had completed four of the sentences—includ-
ing all three marijuana-only sentences. The district court initially
denied relief, holding that even Files’s crack-related convictions
weren’t “covered offenses.” Files appealed, the government con-
fessed error, and we vacated and remanded. United States v. Files,
848 F. App’x 412 (11th Cir. 2021). The district court then reduced
Files’s sentences to time served on the eleven crack-related convic-
tions but held that, under Denson’s interpretation of § 404(b), it
lacked authority to modify his sentences on the three non-covered
powder-related offenses.
This is Files’s appeal.
II
To reset briefly, under § 404(b) of the First Step Act, “[a]
court that imposed a sentence for a covered offense may . . . 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 com-
mitted.” Files contends that, read literally, § 404(b) doesn’t limit
the convictions for which a federal court “may impose a reduced
sentence” to those involving covered offenses—and, accordingly,
that § 404(b) gave the district court here authority to reduce even
his non-covered powder-related sentences.
Files’s argument tees up an interesting question of statutory
interpretation. But first, Denson. As we’ve already noted—and as
we’ll explain in greater detail—the panel there said that a district
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 7 of 35
21-12859 Opinion of the Court 7
court “is permitted to reduce a defendant’s sentence” under
§ 404(b) “only on a ‘covered offense’” and “is not free . . . to change
the defendant’s sentences on counts that are not ‘covered of-
fenses.’” 963 F.3d at 1089. Needless to say, if we’re bound by that
statement, then we must reject Files’s position, whatever its merits.
Under our prior-panel-precedent rule, an earlier panel’s
holding is controlling “unless and until it is overruled or under-
mined to the point of abrogation by the Supreme Court or by this
court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008) (citations omitted). So, two questions, which we’ll
address in turn: (1) Was Denson’s statement—that § 404(b) per-
mits a court to reduce a defendant’s sentence “only on a ‘covered
offense’” and not “on counts that are not ‘covered offenses’”—a
holding? And if so, has it since been overruled or abrogated?
A
In order to determine whether Denson’s statement regard-
ing sentencing courts’ authority under § 404(b) was a holding, we
need to situate it within the context of the panel’s opinion, which
was ultimately addressed to a different issue. That requires some
doing.
In Denson, a district court had partially denied a defendant’s
First Step Act motion—reducing his sentence but by less than he
had requested—and had done so “[w]ithout a hearing.” 963 F.3d
at 1082. “The issue on appeal,” the panel explained, was “whether
the district court [was] required to first hold a hearing at which
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 8 of 35
8 Opinion of the Court 21-12859
Denson was present.” Id. In answering that question, the panel
concluded that neither the First Step Act nor the Due Process
Clause required the district court to hold an in-person hearing be-
fore ruling on Denson’s sentence-modification motion. Id. Im-
portantly here, though, the panel also said a number of other things
along the way—including, again, and most notably for our pur-
poses, that a district court “is permitted to reduce a defendant’s sen-
tence” under § 404(b) “only on a ‘covered offense’” and not “on
counts that are not ‘covered offenses.’” Id. at 1089. Our task is to
determine exactly how that statement figured into the panel’s ulti-
mate no-hearing conclusion. To that end, we provide the follow-
ing detailed description of the panel’s multilayered opinion.
The Denson panel determined, as an initial matter, that nei-
ther the First Step Act itself nor Federal Rule of Criminal Procedure
43 entitles a defendant to an in-person sentence-reduction hearing.
Id. at 1086–87. Having cleared away that underbrush, the panel
turned its attention to Denson’s “due process claim,” which it re-
jected on two grounds. Id. First, the panel held that there was “no
due process concern” because “the right to be present under Rule
43 is at least as broad as the right under the Due Process Clause”;
because Denson had no right to an in-person hearing under the
Rule, he necessarily had no such right as an element of due process.
Id. at 1087–88 (citations omitted). Second, and separately, the
panel addressed Denson’s contention—which he premised on our
decision in United States v. Brown, 879 F.3d 1231 (11th Cir. 2018)—
that his sentence-reduction hearing was a “critical stage” of his
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 9 of 35
21-12859 Opinion of the Court 9
criminal proceeding at which due process required his presence.
See Denson, 963 F.3d at 1088. In particular, Denson asked the
panel to apply “two fact-intensive inquiries” from Brown to hold
that his First Step Act motion constituted a “critical stage”: He was
entitled to an in-person hearing, he said, because (1) the “errors”
that he alleged “undermine[d his] sentence as a whole” and (2) “the
sentencing court [had] exercise[d] significant discretion in modify-
ing [his] sentence.” Id. at 1088 (citation omitted).
The Denson panel rejected the defendant’s Brown-based ar-
gument on two independent bases. First, it held, flatly, that
“Brown’s two-part framework,” which had been adopted for 28
U.S.C. § 2255 proceedings, “does not apply to sentencing modifica-
tions based on [18 U.S.C.] § 3582(c) motions,” including those
brought under the First Step Act. 963 F.3d at 1088–89. Second—
and more importantly for our purposes—the Denson panel pro-
ceeded to say the following: “Alternatively, and as an independent
holding, even assuming arguendo that we should apply Brown’s
fact-intensive framework, [the defendant’s] § 3582(c) sentence
modification based on the First Step Act is not a critical stage under
Brown’s two-part test.” Id. at 1089. In particular, the Denson panel
found that neither of Brown’s two necessary preconditions was sat-
isfied.
As to Brown’s first prong, the panel concluded that Denson’s
First Step Act motion “was not concerned with any ‘errors’ at his
original sentencing that may or may not ‘undermine’ his sentence
in its entirety.” Id. Then, having concluded that Brown didn’t
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 10 of 35
10 Opinion of the Court 21-12859
apply to First Step Act motions at all, and that even if it did its first
precondition wasn’t satisfied, the Denson panel went on to address
Brown’s second prong, the treatment of which is our focus here.
Brown’s second factor, again, asks the following question: “‘[W]ill
the sentencing court exercise significant discretion in modifying the
defendant’s sentence, perhaps on questions the court was not
called upon to consider at the original sentence?’” Id. at 1088 (quot-
ing Brown, 879 F.3d at 1239–40). In holding that the court deciding
Denson’s First Step Act motion hadn’t exercised “significant discre-
tion” within the meaning of Brown, the panel emphasized that the
First Step Act creates only a “limited remedy”—and in explaining
why, the panel highlighted several of the First Step Act’s
“limit[ations],” which we’ll regroup slightly for the sake of clarity.
“[I]n ruling on a defendant’s First Step Act motion,” the Denson
panel observed, “the district court”—
(1) is “permitted to reduce a defendant’s sentence
only on a ‘covered offense’” and “is not free . . . to
change the defendant’s sentences on counts that are
not ‘covered offenses’”;
(2) may make reductions “only ‘as if’ sections 2 and 3
of the Fair Sentencing Act were in effect when he
committed the covered offense”;
(3) may not “change the defendant’s original guide-
lines calculations that are unaffected by sections 2 and
3”; and
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 11 of 35
21-12859 Opinion of the Court 11
(4) may not reduce the defendant’s sentence “based
on changes in the law beyond those mandated by sec-
tions 2 and 3.”
Id. at 1089 (emphasis added) (first quoting § 404(b) and then citing
United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019)).
Based on those four “limit[ations],” the panel stated—as one
part of what it called its “[a]lternative[],” “independent holding”—
that the court adjudicating Denson’s First Step motion hadn’t exer-
cised “significant discretion” within the meaning of Brown and,
therefore, that “a sentencing modification under the First Step Act
does not qualify as a ‘critical stage in the proceedings,’” and, there-
fore—back to the question presented in that case—that Denson
was not entitled to an in-person hearing. Id.That is, we understand, a lot to digest. So here’s a recap of
the Denson panel’s multiple, cascading due-process holdings, in
outline form:
Holding 1: Denson has no due-process right to a
hearing on his First Step Act motion because the Due
Process Clause doesn’t demand more than Rule 43—
which doesn’t require a hearing.
Holding 2: Denson has no due-process right to a
hearing because Brown’s two-part “critical stage” test
“does not apply” to First Step Act motions.
Holdings 3 and 4: Denson has no due-process right
to a hearing because, even assuming that the Brown
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 12 of 35
12 Opinion of the Court 21-12859
test does apply, it isn’t satisfied for two independent
reasons:
3: Brown isn’t satisfied because Denson’s First
Step Act motion didn’t allege “errors” that “un-
dermine[d his] sentence.”
4: Brown isn’t satisfied because the court deciding
Denson’s First Step Act motion hadn’t exer-
cised “significant discretion.”
Importantly here, Denson predicated that fourth and final
holding on the ground that the Act grants only a “limited rem-
edy”—which, in turn, it seemed to predicate, at least in part, on the
ground that a reviewing court “is permitted to reduce a defendant’s
sentence only on a ‘covered offense’” and not “on counts that are
not ‘covered offenses.’” The question we must decide is whether
that particular statement—that a district court may modify a de-
fendant’s sentence only for a covered offense, and not for a non-
covered offense—is a binding determination of law that controls
our decision. 2 For the reasons that follow, we conclude that it is.
2 For what it’s worth—not much—our unpublished decisions have divided
over that question. Compare United States v. Gee, 843 F. App’x 215, 217–18
(11th Cir. 2021) (holding that Denson’s statement is a holding), with United
States v. Hunt, 2022 WL 4115308, at *4–5 (11th Cir. Sept. 9, 2022) (two-judge
majority holding that it’s dictum over a single-judge concurrence arguing that
it’s a holding).
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 13 of 35
21-12859 Opinion of the Court 13
1
At the outset, we should dispel two common misconcep-
tions. First, the mere fact that the Denson panel called its state-
ment a “holding” doesn’t make it a holding. As Judge Friendly has
explained, “[a] judge . . . cannot transmute dictum into decision by
waving a wand and uttering the word ‘hold.’” United States v. Ru-
bin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring); see
also Bryan A. Garner, et al., The Law of Judicial Precedent 59 (2016)
(“[W]hile the court’s statement of [its own] holding is important, it
doesn’t necessarily decide the matter.”). Accordingly, “[t]o the ex-
tent [an] opinion says one thing but does another, what it does is
the holding of the decision.” Ingram v. Comm’r of Soc. Sec. Ad-
min., 496 F.3d 1253, 1265 (11th Cir. 2007) (emphasis added); accord,
e.g., Dantzler v. U.S. IRS, 183 F.3d 1247, 1251 (11th Cir. 1999)
(“[J]udicial opinions do not make binding precedents; judicial deci-
sions do.”).
Second, and by contrast, the mere fact that the Denson
panel’s key statement was delivered as part of an alternative hold-
ing doesn’t disqualify it from holding status. It is well-established
in this Circuit that alternative holdings “are as binding as solitary
holdings.” Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir.
2008) (citations omitted). And under our precedent about prece-
dent, the sort of reasoning employed in Denson—that a particular
test doesn’t apply but that, even if it does, it isn’t satisfied—consti-
tutes a prototypical alternative holding. Indeed, we have said—
albeit (ironically) in dicta—that the alternative-holding rule applies
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 14 of 35
14 Opinion of the Court 21-12859
in precisely these circumstances. See Hitchcock v. Sec’y, Fla. Dep’t
of Corr., 745 F.3d 476, 484 & n.3 (11th Cir. 2014) (issuing “dual
holding[s]” that a habeas petitioner’s claim failed under AEDPA
deference and, even if AEDPA were inapplicable, on de novo re-
view). 3 Because each of Denson’s four alternative holdings is “as
binding” as if it were a “solitary holding[],” Bravo, 532 F.3d at 1162,
we can focus exclusively on the one most relevant to us—namely,
the panel’s conclusion that Denson had no due-process right to an
in-person hearing because the court deciding his First Step Act mo-
tion hadn’t exercised “significant discretion.”
2
Remember, the question that we must decide is whether the
Denson panel’s key statement—again, that § 404(b) permits a dis-
trict court to reduce a defendant’s sentence “only on a ‘covered of-
fense’” and not “on counts that are not ‘covered offenses’”—is itself
a holding. Files insists that it isn’t, and for support he points to the
oft-invoked maxim that portions of a court’s opinion that aren’t
“necessary” to its judgment are dicta, see, e.g., United States v. Gil-
lis, 938 F.3d 1181, 1198 (11th Cir. 2019), and contends that the Den-
son panel’s statement wasn’t strictly necessary to its conclusion
that the district court didn’t exercise “significant discretion” in rul-
ing on Denson’s First Step Act motion. Even if that statement was
absent, the argument goes—even if that particular limitation didn’t
3 Judge Wilson disagreed that the latter ground constituted a holding. See
Hitchcock, 745 F.3d at 490 & n.6 (Wilson, J., concurring).
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 15 of 35
21-12859 Opinion of the Court 15
exist—the panel might still have concluded that the adjudication of
Denson’s motion didn’t entail “significant discretion.” Because
nothing in Denson itself indicates that the statement on which
we’re now focused was necessary to its no-significant-discretion
conclusion, Files reasons, that statement wasn’t a holding.
With respect to the application of the necessary-to-the-judg-
ment criterion, we’ll just come right out and say it: We’re in some-
thing of a grey area here. We know for certain—and Files would
admit—that if all four of the characteristics that the Denson panel
identified as features of First Step Act adjudications, see supra at
10–11, were necessary to its no-significant-discretion determina-
tion, then all four would constitute holdings. See United States v.
Caraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir. 2017). 4 But as
Files points out, the Denson panel seemed to cite the four
4 That the four characteristics pertain to what might be called “legal facts”
about the First Step Act—rather than legal conclusions relevant specifically to
the issue on appeal in Denson—doesn’t change matters. To take just one ex-
ample from our own precedent, in discerning the elements of federal crimes,
we have routinely looked to enumerations of those elements embedded in
earlier double-jeopardy decisions applying the Blockburger analysis, which en-
tails a comparison of legal facts—namely, the elements of two different of-
fenses. See, e.g., United States v. Feldman, 931 F.3d 1245, 1257 (11th Cir. 2019)
(applying, as binding, the elements of a healthcare-fraud conspiracy—18
U.S.C. §§ 1347, 1349—as specified in the Blockburger analysis conducted in
United States v. Gonzalez, 834 F.3d 1206, 1220 (11th Cir. 2016). But cf. Garner,
supra, at 84–86 (suggesting—without citation to authority—that some state-
ments regarding legal facts might be mere “[a]ssumptions underlying court
decisions” that are not precedential even if necessary).
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 16 of 35
16 Opinion of the Court 21-12859
characteristics as illustrative or exemplary features, not as strictly
necessary conditions. It never suggested, for instance, that the ab-
sence of any single characteristic—let alone the first, in particular—
would have changed its decision.
But—and it’s a big but—our own precedent and common
sense both reveal that “necessary” doesn’t mean strictly necessary.
The proof? Consider, for example, two common types of determi-
nations—neither of which is strictly necessary to a court’s judg-
ment, but both of which are traditionally accorded holding status.
First, one we’ve already explored in some detail: alternative hold-
ings. By definition, an alternative holding isn’t necessary to the
court’s judgment—any of two or more alternatives suffices. And
yet, as we’ve already explained, our precedent treats alternative
holdings “as binding as solitary holdings.” Bravo, 532 F.3d at 1162;
see also Garner, supra, at 122–23 (“[A]lternative holdings are still
holdings, even though they aren’t logically necessary to the case’s
disposition.”).
Second, what we’ll call “non-supportive” holdings. Cases
often present multiple issues, and courts will more than occasion-
ally decide one question in one party’s favor but then proceed to
decide another question—and enter judgment—for the other
party. Qualified-immunity cases are illustrative. In those, a court
will often conclude, at step one of the familiar two-step analysis,
that a government official violated the Constitution but then go on
to determine, at step two, that the law wasn’t “clearly estab-
lished”—and, therefore, that the official is entitled to immunity.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 17 of 35
21-12859 Opinion of the Court 17
See, e.g., Camreta v. Greene, 563 U.S. 692, 699–700 (2011). Both
conclusions are holdings. Indeed, the Supreme Court has explicitly
said that, in that circumstance, a court’s step-one conclusion that
the official violated the Constitution is “[n]o mere dictum” but, ra-
ther, “creates law that governs the official’s behavior,” even if he
prevails at step two. Id. at 708 (allowing an official who prevailed
at the second step, and thereby obtained a favorable judgment, to
appeal a lower court’s adverse determination that he violated the
law). It goes without saying that a non-supportive holding of this
sort isn’t necessary to the court’s judgment—because it actually
contradicts the court’s judgment. And yet, it is a binding holding
nonetheless. See also, e.g., United States v. Steed, 548 F.3d 961, 977
(11th Cir. 2008) (treating as a binding holding an earlier court’s de-
termination that a jury instruction was unlawful despite the earlier
court’s ultimate conclusion that the error was harmless).
And to be clear, there are still other circumstances in which
we depart from a strict-necessity criterion. When, for instance, one
of our opinions chooses between two competing legal “tests” in the
course of resolving a case, we have characterized our choice of one
of them as a holding even when it’s not clear that the case would
have turned out differently under the other. 5 For that matter,
5 United States v. Kaley, 579 F.3d 1246 (11th Cir. 2009), is illustrative. There,
we had to determine the holding of our earlier decision in United States v.
Bissell, 866 F.2d 1343 (11th Cir. 1989). In Bissell, the government had re-
strained several indicted drug dealers’ bank accounts in order to preserve the
funds for eventual seizure under 21 U.S.C. § 853(a). Id. at 1347. The
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 18 of 35
18 Opinion of the Court 21-12859
statements of a legal rule—whether or not the result of a choice
among competing alternatives—are often technically unnecessary
to a case’s resolution. In many (if not most) cases, we could simply
decide the dispute narrowly on its own particular facts, without
separately articulating a test or standard. But no one thinks that
when we do state a governing rule—as we typically do—we do so
gratuitously and unnecessarily. See Michael Abramowicz & Max-
well Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 984–86 (2005).
Given the many exceptions and caveats, it’s easy to see why theo-
ries of precedent inextricably tied to strict, logical “necessity”—
while “frequently cited” and easy to apply—are “problematic in
profound ways” and, among competing theories, “prove[] the eas-
iest to falsify.” Id. at 959, 1056.
defendants couldn’t access the money, including for their legal defense, and
weren’t given a pre-trial hearing to challenge the restraint. Id. at 1349–50. In
determining that the failure to conduct a hearing didn’t violate the defendants’
due-process rights, the Bissell panel applied a test that the Supreme Court had
adopted for speedy-trial purposes in Barker v. Wingo, 407 U.S. 514 (1972). See
866 F.2d at 1353–54. Faced with the same issue in Kaley, we concluded—over
a concurring judge’s objection—that that the Bissell panel’s adoption of the
Barker test was controlling. 579 F.3d at 1253 n.10. We said so because the
choice “form[ed] a critical part of the [Bissell] case’s holding” and because the
Bissell panel’s conclusion “was driven by, and [could not] be understood apart
from[,] [its] application” of the Barker test”—and, notably, despite the fact that
Bissell “could have [been] decided . . . on other grounds,” and seemingly with-
out respect to whether that case would come out the same way had the panel
adopted a different standard. See id.USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 19 of 35
21-12859 Opinion of the Court 19
But if, as our own precedent reveals, “necessary” doesn’t re-
ally mean necessary, what is the true measure of a holding? Does
holding status attach, as the Ninth Circuit has posited, to any “issue
germane to the eventual resolution of the case [that the court] . . .
resolves . . . after reasoned consideration in a published opinion,”
United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)
(plurality opinion), “regardless of whether it was in some technical
sense ‘necessary’”? Barapind v. Enomoto, 400 F.3d 744, 751 (9th
Cir. 2005) (en banc). See Charles W. Tyler, The Adjudicative
Model of Precedent, 87 U. Chi. L. Rev. 1551, 1567–72 (2020) (de-
scribing the Ninth Circuit’s view). That approach, we think—
while also neat and clean—sweeps too broadly. To be sure, it
would comport with some of our caselaw. For example, we’ve
treated as dicta—as we think even the Ninth Circuit’s broad rule
would—legal conclusions predicated on facts that aren’t actually at
issue, 6 as well as aside-like statements about irrelevant legal mat-
ters. 7 But the Ninth Circuit’s far-reaching germane-and-considered
6 E.g.,Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (holding
that legal conclusions about hypothetical facts are dicta); Caraballo-Martinez,
866 F.3d at 1244 (similar).
7 Consider, for instance, our decision in United States v. Pickett, 916 F.3d 960,
966 (11th Cir. 2019), that a statement in United States v. Glover, 431 F.3d 744,
749 (11th Cir. 2005), was dictum. In Glover, a panel had considered whether
a judge impermissibly found a fact that triggered enhanced penalties. Id. at
749. After concluding that the relevant determination was a question of law
rather than fact, the panel had appended an observation that the legal deter-
mination was correct. Id. Because that statement wasn’t relevant to the ques-
tion presented in Glover, we concluded in Pickett that it was dictum. 602 F.3d
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 20 of 35
20 Opinion of the Court 21-12859
criterion would contradict our precedent in other respects, in that
we have relegated to dicta status statements of law that our sister
circuit would treat as holdings—for instance, statements regarding
a legal framework that the court initially engages but ends up aban-
doning in favor of an alternative. 8
So far as we can tell, the four relevant-but-not-decisive char-
acteristics of First Step Act proceedings that the Denson panel iden-
tified as features of a First Step Act adjudication don’t fit neatly into
any of our existing “holding” or “dicta” categories. Without a
ready-made, easy-to-apply metric, we are left to determine
whether the Denson panel’s statements are more like those that
we’ve treated as holdings or those that we’ve deemed dicta. On
at 966; see also, e.g., Georgia Ass’n of Latino Elected Offs., Inc. v. Gwinnett
Cnty. Bd. of Registration & Elections, 36 F.4th 1100, 1119–20 (11th Cir. 2022)
(holding that a previous decision’s statement in an introductory paragraph
about a statutory provision’s operation was dictum because it wasn’t applica-
ble to the previous case’s resolution); Fresh Results, LLC v. ASF Holland, B.V.,
921 F.3d 1043, 1050 (11th Cir. 2019) (characterizing as dictum a previous deci-
sion’s description of a legal standard applicable to a question that it didn’t
reach).
8 See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 764 (11th Cir. 2010)
(treating as dicta a previous decision’s statements about common law where
the case was ultimately resolved on statutory grounds); Welch v. United
States, 958 F.3d 1093, 1098 (11th Cir. 2020) (treating as dictum a previous de-
cision’s discussion of ACCA’s elements clause where the case was ultimately
resolved under the residual clause).
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 21 of 35
21-12859 Opinion of the Court 21
balance, we think that they are more like the sorts of conclusions
that we have accorded holding status.
Here’s why: As already noted, if the Denson panel had said
that a defendant had to prove all four characteristics in order to
demonstrate that the sentencing court hadn’t exercised “significant
discretion,” then its conclusions about each would have consti-
tuted traditional, necessary-to-the-result holdings. If, at the other
end of the spectrum, the panel had said that any one of the four
characteristics was sufficient to show an absence of “significant dis-
cretion,” then each of its conclusions would, in effect, have consti-
tuted a binding alternative holding. Between those two extremes,
the same would be true if the panel had said, for instance, that any
two were sufficient: In that circumstance, each would be part of
an alternative holding—e.g., the first two are present or, in the al-
ternative, the last two are; the first and third are present or, in the
alternative, the second and fourth are; etc. (So too if the panel had
said that any three would suffice. 9) Accordingly, the only thing
separating the Denson panel’s actual statements regarding the four
characteristics from binding traditional holdings (on the one hand)
or binding alternative holdings (on the other) is that it didn’t specify
precisely how many characteristics it took to cross the sufficiency
9 All of this
assumes, of course, that the several characteristics of First Step Act
adjudications that the Denson panel identified carry equal weight. They seem
equally weighty to us, and nothing in Denson suggests otherwise.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 22 of 35
22 Opinion of the Court 21-12859
threshold—or precisely which ones. That seems like a pretty thin
basis on which to deny them holding status.
Bottom line: Our precedent about precedent makes clear
that strict necessary-ness is not essential to a statement’s holding-
ness. And the Denson panel’s statements regarding First Step Act
adjudications were clearly significant to its no-significant-discretion
conclusion—and are thus fundamentally similar to the other sorts
of determinations that we have traditionally accorded holding sta-
tus. Accordingly, we treat the Denson panel’s statements regard-
ing the scope of sentencing courts’ authority under § 404(b) as hold-
ings. 10
10One last thing: Files also asserts that the Denson panel’s statement about
the permissibility of reducing sentences for non-covered offenses can’t consti-
tute a holding because it outstripped the facts of the case—because, he says,
Denson didn’t have a non-covered offense. Files is right about the law: A
“decision can hold nothing beyond the facts of that case.” Edwards v. Prime,
Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (collecting cases). But he’s wrong
about the facts—or at least about the relevant facts as the courts in Denson
understood them. Files emphasizes that Denson had completed the sentence
on his non-covered offense before this Court issued its decision. But because
Denson’s Brown-based claim addressed a procedural issue—whether he was
entitled to a hearing in the district court—what mattered, as the panel there
understood and explained matters, was the fact that Denson had a non-cov-
ered offense at the time the district court ruled. See 963 F.3d at 1085; see also
Denson, No. 19-11696, Doc. 141 at 5 (district court stating that “[t]he prison
sentence on [the noncovered offense] remains 120 months, still to be served
concurrently”). See generally United States v. Aguillard, 217 F.3d 1319, 1321
(11th Cir. 2000) (“The holdings of a prior decision can reach only as far as the
facts and circumstances presented to the Court in the case which produced
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 23 of 35
21-12859 Opinion of the Court 23
* * *
In sum, then, we conclude that Denson’s determination that
a district court “is permitted to reduce a defendant’s sentence” un-
der § 404(b) “only on a ‘covered offense’” and “is not free . . . to
change the defendant’s sentences on counts that are not ‘covered
offenses,’” 963 F.3d at 1089, is indeed a holding. And under our
prior-panel-precedent rule, that means it binds us unless it has been
overruled or “undermined to the point of abrogation” either by the
Supreme Court or by one of our own en banc decisions. Archer,
531 F.3d at 1352. It is to that issue that we turn next.
B
Files contends that to the extent that Denson held that a dis-
trict court lacks the authority to reduce a sentence for a non-cov-
ered offense, the Supreme Court’s decision in Concepcion abro-
gated it. We disagree.
To be sure, Concepcion abrogated aspects of Denson. In
particular, the Supreme Court expressly rejected the fourth of the
four considerations that the Denson panel highlighted in its no-sig-
nificant-discretion analysis: The Court held, contra Denson, that a
district court adjudicating a First Step Act motion can consider
changes in law unrelated to those specified in the Fair Sentencing
Act. Compare Concepcion, 142 S. Ct. at 2396, with Denson, 963
that decision.” (emphasis added) (quoting parenthetically United States v.
Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (Carnes, J., concurring))).
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 24 of 35
24 Opinion of the Court 21-12859
F.3d at 1089. But Concepcion certainly didn’t repudiate Denson in
toto; indeed, it expressly affirmed the third of the Denson panel’s
four considerations—namely, that a court can’t recalculate a de-
fendant’s guidelines ranges for non-Fair-Sentencing-Act reasons.
Compare Concepcion, 142 S. Ct. at 2402 n.6, with Denson, 963 F.3d
at 1089.
Most importantly here, Concepcion didn’t address a sen-
tencing court’s authority to deal with non-covered offenses one
way or the other—presumably because the defendant there didn’t
have one; he had only a single conviction for a covered crack-re-
lated offense. 142 S. Ct. at 2396. Accordingly, we cannot say that
Concepcion “abrogated” Denson’s determination that district
courts may not reduce defendants’ sentences for non-covered of-
fenses.
In arguing otherwise, Files focuses on the Supreme Court’s
statements that Congress didn’t “hide any limitations on district
courts’ discretion outside of § 404(c)” and that § “404(b) does not
erect any additional such limitations.” Id. at 2402. But Files mis-
understands the Court’s comments. The Court was referring there
only to limits on how district courts exercise their “discretion” in
reducing defendants’ sentences—not to their power to do so in the
first place. The latter is an issue of authority, not discretion. And
with respect to authority, both the Act and the Supreme Court’s
opinion contemplate limits outside § 404(c). Take, for example,
the very first clause of § 404(b): It clearly states that only the “court
that imposed a sentence for a covered offense”—not just any
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 25 of 35
21-12859 Opinion of the Court 25
court—can entertain a sentence-reduction motion under the Act.
So too, as just explained, Concepcion itself observed that district
courts can’t recalculate defendants’ guidelines ranges based on
changes unrelated to those specified in the Fair Sentencing Act. See
142 S. Ct. at 2402 n.6. Those “limitations” remain effective, despite
being “outside of § 404(c),” id. at 2402, because they pertain to a
court’s ex ante authority to act, not the manner in which it exer-
cises its discretion. The limitation that Denson recognized—i.e.,
that a court “is permitted to reduce a defendant’s sentence only on
a ‘covered offense,’” 963 F.3d at 1089—is similar: It speaks to the
whether, not the how.
There is thus no fatal inconsistency. A district court adjudi-
cating a First Step Act motion can—without fear of contradiction—
apply both Denson’s holding limiting the categories of sentences
that can be reduced and Concepcion’s holding empowering courts
to exercise broad discretion in imposing reduced sentences for
those qualifying offenses. Accordingly, we hold that Concepcion
did not abrogate Denson’s holding that a sentencing court “is per-
mitted to reduce a defendant’s sentence” under the First Step Act
“only on a ‘covered offense’” and not “on counts that are not ‘cov-
ered offenses.’” 963 F.3d at 1089.
III
For all these reasons, we hold (1) that this Court’s statement
in Denson that a district court “is permitted to reduce a defendant’s
sentence” under the First Step Act “only on a ‘covered offense’”
and “is not free . . . to change the defendant’s sentences on counts
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 26 of 35
26 Opinion of the Court 21-12859
that are not ‘covered offenses,’” 963 F.3d at 1089, was a holding; (2)
that Concepcion did not abrogate that holding; and (3) that our
prior-panel-precedent rule obliges us to follow it.
AFFIRMED.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 27 of 35
21-12859 Newsom, J., Concurring 1
NEWSOM, Circuit Judge, joined by TJOFLAT, Circuit Judge, concur-
ring:
Reasonable minds can differ, of course, but my own view—
fortified by my experience with this case—is that federal appellate
courts should issue fewer alternative holdings.
I’ll detail my reasons in due course. Let me begin, though,
with our decision here. As the majority opinion explains, this ap-
peal tees up an interesting question of statutory interpretation.
Section 404(b) of the First Step Act states that “[a] court that im-
posed a sentence for a covered offense may . . . 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.”
The question: For what offenses may a court “impose a reduced
sentence” within the meaning of § 404(b)? Only for “covered of-
fense[s]”? Or, at the other end of the spectrum, perhaps for any
offense, even if non-“covered”—and, for that matter, even if
wholly unrelated to the conduct that underlies a covered offense?
Or might there be some middle ground, in which courts can reduce
sentences for offenses that are (my term) “inextricably intertwined”
with a covered offense?
The question regarding § 404(b)’s proper scope isn’t just in-
teresting, it’s important. Thousands of federal prisoners were eli-
gible for sentence reductions under the First Step Act, and so deter-
mining the extent of courts’ authority under the Act has practical,
real-world significance. And, as it turns out, that issue—the mean-
ing of § 404(b)’s “may impose a reduced sentence” clause—is
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 28 of 35
2 Newsom, J., Concurring 21-12859
squarely presented in this case. The parties thoroughly briefed it.
See Br. of Appellant at 23–44; Br. of Appellee at 27–33; Reply Br. of
Appellant at 2–9. It was fully vetted at oral argument. See Oral
Arg. at 14:18–23:00, 32:18–38:43. And I, for one, think that the an-
swer is pretty clear: Understood in context, and particularly in the
light of § 404(b)’s indisputable focus on “covered offense[s],”
§ 404(b) should be interpreted to empower courts to modify sen-
tences only for those offenses, such that the provision reads, in ef-
fect, as follows: “A court that imposed a sentence for a covered
offense may . . . impose a reduced sentence for a covered offense
as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in
effect at the time the covered offense was committed.” That’s the
only reading, I submit, that makes any legal or practical sense.
The obvious question, then: Why didn’t we say so? Be-
cause, as the majority opinion explains, we concluded that we
didn’t need to. Having determined that this Court’s earlier deci-
sion in United States v. Denson, 963 F.3d 1080, 1089 (11th Cir.
2020), had already resolved the issue in a way that binds us, we
found no cause to forge ahead to interpret the statute afresh. See
Maj. Op. at 2–3. Even so, one might respond, why not strap on
both belt and suspenders? Especially given the difficulty and close-
ness of the Denson issue—whether its statement regarding
§ 404(b)’s scope constitutes a binding holding, see Maj. Op. at 14–
23—why not do exactly what the Denson panel itself did and issue
an “[a]lternative[] . . . independent holding” that simply “assum[es]
arguendo” that Denson doesn’t control, 963 F.3d at 1089, and goes
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 29 of 35
21-12859 Newsom, J., Concurring 3
on to conclude, in any event, that § 404(b) only narrowly author-
izes reviewing courts to modify sentences for covered offenses?
What’s the harm?
Speaking only for myself, I think the harm can be very real. 1
Let me explain.
Some have gone so far as to suggest that alternative holdings
are unconstitutional—the premise being, in essence, that once a
court has provided a single sufficient basis for resolving the dispute
before it, the constitutional “Case[]” has concluded and the “judi-
cial power” has been fully discharged. See U.S. Const. art. III, § 2.
Any further statement of law, the argument goes, “present[s] po-
tential advisory-opinion problems.” Phelps v. Alameda, 366 F.3d
722, 729 (9th Cir. 2004) (O’Scannlain, J.).
My contention is more modest: At least in appellate courts,
issuing alternative holdings is often just a bad idea. I say so for
three reasons: (1) my own sense of the judicial role, (2) my desire
to facilitate sound judicial decisionmaking, and (3) my concern for
impartiality and collegiality on multimember courts.
1. The Judicial Role. Some have a very muscular view of a
federal-court authority. They, to use Hart and Wechsler’s well-
worn terminology, see federal courts as principally engaged in the
1And real harm aside, let not the irony be lost that Denson’s cascade of alter-
native holdings is one of the very things that made it so difficult to determine
whether its statement regarding § 404(b)’s scope constituted a holding. See
Maj. Op. at 7–12.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 30 of 35
4 Newsom, J., Concurring 21-12859
“law declaration” business. Richard H. Fallon, Jr., et al., Hart and
Wechsler’s The Federal Courts and The Federal System 73–74 (7th
ed. 2015). Courts “have a special function,” they say, “of enforcing
the rule of law” by articulating clear, precedential rulings that,
taken together, create binding legal doctrine—or, as Hart and
Wechsler more soaringly summarize it, “to declare and explicate
norms that transcend individual controversies.” Id. at 74. As
should be clear, this law-declaration role exists “independent[ly]
of” the courts’ “task of resolving concrete disputes.” Id.
Not me. I’m in what Hart and Wechsler would call the “dis-
pute resolution” camp. Id. at 73. Federal courts are tasked by the
Constitution—and tasked only—with adjudicating the “Cases” and
“Controversies” that real parties bring before them. See U.S.
Const. art. III, § 2. Without respect to whether the Constitution
actually requires it to do so, once a court has fulfilled its obliga-
tion—that is, has said enough to resolve the parties’ dispute—it
should just stop. It shouldn’t forge ahead, reach out, and declare
more law.
I realize that mine is a quaint perspective, out of step with
the more robust conception of judicial power that has taken hold
during the “past half century” or so. Hart & Wechsler, supra, at
74. If that makes me a throwback, so be it. I’ll happily cling to my
view—which I’ve expressed elsewhere in lamenting courts’ mod-
ern tendency to decide issues unnecessarily—that federal judges
should be “reactive, not proactive; passive, not aggressive; modest,
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 31 of 35
21-12859 Newsom, J., Concurring 5
not bold.” United States v. Campbell, 26 F.4th 860, 895 (11th Cir.
2022) (en banc) (Newsom and Jordan, JJ., dissenting).
Alternative holdings—A; and if not A, then B; and if not A
or B, then C—rarely reflect “reactive,” “passive,” or “modest” de-
cisionmaking. They’re almost always the opposite—“proactive,”
“aggressive,” and “bold.” By “decid[ing] questions that do not mat-
ter to the disposition of a case,” courts are “separat[ing] Lady Jus-
tice’s scales from her sword.” Friends of Everglades v. S. Fla. Water
Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009). And wielding
this sword verges dangerously close, I fear, to judicial legislation.
And that should give us pause. 2
2. Sound Decisonmaking. Of course, in discharging their
dispute-resolution function, federal courts will declare some law
along the way. “[I]ncidental to [their] responsibility to decide con-
crete disputes,” that is, courts will necessarily create precedent and
doctrine. Hart & Wechsler, supra, at 73. Needless to say, in doing
2 Let me anticipate and attempt to respond here to an objection: “Aren’t your
separate concurring opinions—like, oh, say, this one—‘proactive,’ ‘aggres-
sive,’ and ‘bold’ in exactly the same way as the alternative holdings you criti-
cize?” No, actually. A judge’s solo concurrence doesn’t even purport to de-
clare law—it aims only to advance the conversation about a particular topic.
In fact, it is my antipathy for alternative holdings that causes me to write sep-
arate concurrences in cases where I think they might be of some use. Rather
than attempt to wedge my thoughts into a controlling opinion, I offer them,
on behalf of myself only, for whatever they may (or may not) be worth.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 32 of 35
6 Newsom, J., Concurring 21-12859
so, they should strive to declare the law as accurately as possible. 3
My worry is that there’s likely an inverse relationship between the
number of holdings a court purports to issue and the correctness of
each. That’s not rocket science—or, to be fair, any kind of science.
It’s just a common-sense observation that the more a court bites
off, the less time and attention it has to savor and digest each con-
stituent morsel.
I’m hardly the first person to express this concern. Judge
Leval has observed, for instance, that in his experience, “[c]ourts
often give less careful attention to propositions uttered in support
of unnecessary alternative holdings.” Pierre N. Leval, Judging Un-
der the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249,
1258 n.23 (2006). In particular, he worries that judges joining an-
other’s opinion are “likely to look primarily at whether the opinion
fulfills their expectations as to the judgment and the reasoning
given in support of it”—and, correlatively, that there is a “high like-
lihood that . . . alternative explanations[] and dicta will receive
scant attention.” Id. at 1262. Judge Kethledge’s warning about
dicta applies to alternative holdings, as well: “[J]udges think differ-
ently—more carefully, more focused, more likely to think things
through—when our words bring real consequences to the parties
3 They should also strive to declare it as clearly as possible. For advocates of
the law-declaration model, this should be particularly important. Cluttering
up opinion with cascading alternative holdings makes each holding harder to
find and discern, see Maj. Op. at 7–12, undermining the very notice and rule-
of-law values that the law-declaration model purports to advance.
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 33 of 35
21-12859 Newsom, J., Concurring 7
before us.” United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019)
(en banc) (Kethledge, J., concurring). Judge Posner has said similar
things: Passages that are not an “integral part of the earlier opinion
. . . may not have been fully considered.” United States v. Crawley,
837 F.2d 291, 292 (7th Cir. 1988).
The unremarkable bottom line: When everyone in the de-
cisionmaking process focuses on a single, necessary ground for re-
solving a case—when our attention is trained, rather than di-
vided—we’re more likely to arrive at an answer that is well-consid-
ered, well-explained, and, most importantly, correct. Let’s go
deep, not broad.
3. Impartiality and Collegiality. Two final—and related—
problems, both of which are illustrated by a story relayed to a
scholar who was investigating different appellate courts’ ap-
proaches to precedent. An anonymous Ninth Circuit judge shared
the following vignette: “People would ask me, ‘What’s wrong
with [the Ninth Circuit’s] assignment system—Judge Reinhardt is
on all the big cases?’ [And] I . . . say, . . . ‘There is nothing wrong
with [our] assignment system—Judge Reinhardt makes big cases!’”
Charles W. Tyler, The Adjudicative Model of Precedent, 87 U. Chi.
L. Rev. 1551, 1589–90 (2020) (alterations in original) (emphasis
added). That story, I think, contains important lessons about both
impartiality and collegiality.
First, impartiality. Impartiality is a (perhaps the) corner-
stone of our judicial system. As I’ve said before, when a court
reaches out to address and decide an issue—here, one unnecessary
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 34 of 35
8 Newsom, J., Concurring 21-12859
to the resolution of the dispute before it—it increases the risk that
outside observers will perceive it (even if mistakenly) to be engaged
in “political action” and, accordingly, view its conduct with suspi-
cion and cynicism. See Campbell, 26 F.4th at 896 (Newsom and
Jordan, JJ., dissenting). Put simply, when a court decides more than
necessary—and even more so when it ranges into tertiary and qua-
ternary holdings—it gives the impression that it wants to make law
rather than impartially apply it.
Second, collegiality. In their day-to-day work, federal appel-
late courts sit in panels of three, comprising judges drawn on a ran-
dom rotational basis to “ensure that all of the [active] judges sit on
a representative cross section of the cases heard.” 28 U.S.C. § 46(b).
Our prior-panel-precedent rule is designed to afford equal respect
to each panel, in that no one collection of three judges can overrule
the decision of any other. See United States v. Archer, 531 F.3d
1347, 1352 (11th Cir. 2008). But that rule alone can’t ensure that
panels—and the judges who serve on them—share equally in de-
termining circuit precedent. If some judges write narrow, con-
strained opinions while others reach out to decide as many issues
as possible in successive alternative holdings, then our rule system-
atically preferences the views of the most aggressive. I don’t think
anyone wants that.
* * *
USCA11 Case: 21-12859 Document: 44-1 Date Filed: 03/24/2023 Page: 35 of 35
21-12859 Newsom, J., Concurring 9
For all of these reasons, I hope that we will all think, and
then think, and then think again before embedding alternative
holdings in our opinions. 4
4 As I said at the outset, I confine my critique to alternative holdings issued by
appellate courts. Although any constitutional objection would apply equally
to district courts, I’m willing to concede that the practical calculus there is dif-
ferent. First, because their opinions aren’t precedential, see Camreta v.
Greene, 563 U.S. 692, 709 n.7 (2011), district courts don’t declare law in the
same way that appellate courts do, and thus don’t face the same tension be-
tween the dispute-resolution and law-declaration adjudicative models. Sec-
ond, because district judges don’t sit on multi-member panels, they don’t face
the same collegiality issues that can arise from aggressive decisionmaking in
the appellate courts. And finally, for a district court, providing redundant de-
cisional grounds can meaningfully increase judicial efficiency by (1) minimiz-
ing the risk that a case ping-pongs between it and the appellate court and (2)
facilitating the resolution of the entire case in a single appeal. See United States
v. Caporale, 701 F.3d 128, 142 n.8 (4th Cir. 2012).