United States v. Blake

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BYRON BLAKE, Defendant-Appellant.

No. 22-1569

United States Court of Appeals, Seventh Circuit

September 11, 2023

NONPRECEDENTIAL DISPOSITION

Submitted August 22, 2023 ^[*]

Appeal from the United States District Court for the Southern District of Illinois. No. 3:06-CR-301460-NJR Nancy J Rosenstengel, Chief Judge.

Before Michael B. Brennan, Circuit Judge Michael Y. Scudder, Circuit Judge Candace Jackson-akiwumi, Circuit Judge

ORDER

Byron Blake, a federal prisoner, appeals an order granting him partial relief on his motion under section 404(b) of the First Step Act of 2018. In its ruling, the district court reduced his 420-month prison term to 360 months. But Blake argues that the court should have retroactively applied some of our recent decisions and revised some of its enhancements under the Sentencing Guidelines. Because the district court did not need to apply our decisions retroactively and Blake forfeited his other arguments, we affirm.

We have reviewed Blake's sentence twice already. The first time occurred after a jury found him guilty of conspiracy to distribute and to possess with intent to distribute crack cocaine and of distribution of base and powder cocaine. See 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1). In calculating his offense level under the Sentencing Guidelines, the district court applied enhancements for a prior drug conviction, 21 U.S.C. § 851, for his leadership role, U.S.S.G. § 3B1.1(a), and for obstruction of justice, U.S.S.G. § 3C1.1. It then imposed a below-guidelines sentence of 420 months' imprisonment. On direct appeal, we upheld the sentence noting that the district court's finding that Blake was responsible for distributing at least 1.5 kilograms of crack was "reasonable." United States v. Blake, 286 Fed.Appx. 337, 340 (7th Cir. 2008).

The second time occurred after Blake moved, in 2019, for a sentence reduction under section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222. The parties agreed that Blake was eligible for a reduction because he had committed a "covered offense," but the government urged the court to deny any reduction because of the nature of the offense and the danger Blake posed to the community. The court ruled that relief was not warranted. On appeal, we remanded and instructed the district court to address the changes to the statutory penalties for Blake's offenses and determine the applicable guidelines range, which depended partly on the drug quantity. See United States v. Blake, 22 F.4th 637, 639 (7th Cir. 2022).

The district court reconsidered Blake's motion. First, it identified the new, lower penalties that applied to the relevant counts (10 years to life, as opposed to the previous 20 years to life). Then it revised certain calculations under the Sentencing Guidelines: It explained that it would not attribute to Blake the amount of cocaine base attributable to his codefendant (500 grams), but that it found Blake responsible for more than 2.8 but less than 25.2 kilograms of crack cocaine. Adding enhancements for leadership, his prior drug conviction, and obstruction of justice, the advisory prison term was now 360 months to life. After weighing mitigating factors, such as Blake's family support, the educational programming he enrolled in, the prison jobs he held, and the lack of disciplinary action against him, the court reduced his sentence to 360 months' imprisonment on the counts to which the First Step Act applied.

On appeal, Blake first argues that the court erred by not retroactively applying the rule of United States v. Barnes, 602 F.3d 790 (7th Cir. 2010), to attribute to him the same drug quantity as to his codefendant. (Doing so would have resulted in a guidelines range of 235 to 293 months). In Barnes, which we decided after Blake was originally sentenced, we held that a district court cannot attribute different drug quantities to codefendants if the record is identical for each. Barnes, 602 F.3d at 796-97. But the First Step Act does not require district courts to apply intervening judicial decisions, see United States v. Fowowe, 1 F.4th 522, 532 (7th Cir. 2021). Thus, the court did not err by declining to apply Barnes. And the court acted within its discretion to conclude that the record differed with respect to Blake and his codefendant because Blake was his codefendant's supplier.

Next Blake challenges the court's decision to apply two enhancements. He first contests the sentencing enhancement for being a leader or organizer. But Blake did not raise concerns about this enhancement in his motion for a reduced sentence (or on direct appeal, for that matter). He has thus forfeited the issue, subjecting it to the highly deferential plain-error standard of review. See United States v. Smith, 54 F.4th 1000, 1007 (7th Cir. 2022). Seen through that lens, we will not disturb the finding, now settled for fifteen years: The district court knew that in his two prior trips to this court Blake never contested the finding and...