United States v. McNeal

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CORY MCNEAL, Defendant-Appellant.

No. 22-5847

United States Court of Appeals, Sixth Circuit

November 1, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

Before: GIBBONS, BUSH, and DAVIS, Circuit Judges.

OPINION

JOHN K. BUSH, Circuit Judge

Cory McNeal moved for a discretionary sentence reduction under the First Step Act. The district court declined McNeal's request, leaving in place his 262-month sentence. McNeal contends that the court abused its discretion. It did not, so we affirm.

I A. Initial Sentencing

Cory McNeal pleaded guilty in 2008 to conspiring to distribute, and to possessing with the intent to distribute, 5 grams or more of cocaine base ("crack") and 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Because McNeal had prior convictions for possessing and delivering drugs, and because his instant offense qualified as a "controlled substance offense" at the time, the district court sentenced him as a career offender under U.S.S.G. § 4B1.1. Under that Guidelines enhancement, a defendant's base offense level is determined by the statutory maximum sentence he may receive. U.S.S.G. § 4B1.1(b). And because of the quantity of drugs that McNeal possessed in his instant offense, the government filed a discretionary notice under 21 U.S.C. § 851 that McNeal was subject to a mandatory sentence of ten years to life imprisonment. Because the § 851 enhancement increased his statutory maximum sentence to life, his base offense level rose to 37. From there, the district court reduced his offense level by 3 points because he pleaded guilty and, based on his revised offense level and criminal history category of VI, calculated a Guidelines range of 262 to 327 months' imprisonment. All told, McNeal was sentenced in 2009 to 262 months' imprisonment and 8 years' supervised release.

B. Post-Sentencing Developments

Just a year later, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack cocaine and powder cocaine offenses from 100-to-1 to 18-to-1. Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372 (2010). Congress made those changes retroactive when it passed the First Step Act in 2018. Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). Usually, a court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). But an exception to that rule states that a court "may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute." Id. § 3582(c)(1)(B). Through the First Step Act, courts have discretion to modify sentences that meet the statute's requirements. See United States v. Maxwell, 991 F.3d 685, 689 (6th Cir. 2021).

Section 404 of the First Step Act permits a defendant to move for a reduced sentence if (i) he committed a "covered" offense, or one for which the statutory penalty was modified by §§ 2 or 3 of the Fair Sentencing Act; (ii) his offense was committed before August 3, 2010; and (iii) he had not previously moved for and been denied a sentence reduction under the First Step Act. § 404, 132 Stat. at 5222.

Even if the defendant qualifies for a sentence reduction, nothing in the First Step Act requires a court to reduce his sentence. Id. at § 404(c).

The First Step Act also reduced some mandatory minimums and altered the prerequisites for certain enhanced recidivist penalties. § 401, 132 Stat. at 5220. This included requiring that the predicate offense for an enhancement under 21 U.S.C. § 851 be a "serious drug felony" or "serious violent felony," rather than a "felony drug offense." § 401(b), 132 Stat. at 5221 (changing the language found in 21 U.S.C. § 841). However, the revised penalties in § 401 are not available to defendants sentenced before December 21, 2018. § 401(c), 132 Stat. at 5221; see also United States v. Bonds, 858 Fed.Appx. 873, 876 (6th Cir. 2021) ("Because the First Step Act became effective on December 21, 2018, well after [the defendant] received his enhanced sentence, any retroactive effects of section 401 do not apply to [him].").

C. Procedural History

In 2020, McNeal moved pro se for a sentence reduction under the First Step Act. His motion was then supplemented several times by counsel, and he ultimately requested the court reduce his sentence to 188 months. Relying on this court's decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), McNeal contended that he no longer qualified for the career offender enhancement.^[1] He also argued that, because § 401 of the First Step Act provides that only a "serious drug felony" qualifies as a predicate offense triggering a § 851 enhancement, he was not subject to that enhancement either. Finally, he asked the court to consider his rehabilitative efforts and what his sentence would be if he was sentenced today when balancing the 18 U.S.C. § 3553(a) factors.

The government conceded that McNeal was eligible for a sentence reduction because the Fair Sentencing Act reduced the statutory penalty for convictions involving crack under § 841(b)(1)(B). But it disagreed that his sentence should be reduced. Because McNeal was convicted of conspiring to distribute both 5 grams crack and 500 grams cocaine, and because the Fair Sentencing Act did not reduce the statutory penalty for a cocaine conviction under § 841(b)(1)(B), the government explained that McNeal's Guidelines range would not change after applying the Fair Sentencing Act. In other words, McNeal's conspiracy to distribute triggered the same statutory penalty in 2020 as it did in 2009.

The district court determined that McNeal was eligible for a sentence reduction but that a reduction was not warranted. It agreed with the government that because McNeal was convicted of conspiring to distribute 500 grams of cocaine, the Fair Sentencing Act did not affect his Guidelines range or his career offender status. The court did not remove the § 851 enhancement but noted that it had "considered" the effect § 401 of the First Step Act would have had if the statute had "been in effect at the time of his sentencing." Order on Sentence Reduction Pursuant to Section 404 of the First Step Act of 2018, R.657 at PageID 3201. It also acknowledged that it considered the effect of Havis and of the § 3553(a) factors, but concluded that neither consideration justified reducing his sentence.

McNeal now appeals the district court's denial of a sentence reduction, insisting that it made a legal error when it declined to remove the career offender enhancement from his recalculated Guidelines range and that it abused its discretion in failing to grant him relief.

II.

We have jurisdiction under 28 U.S.C. § 1291. See United States v. Smithers, 960 F.3d 339, 344-45 (6th Cir. 2020). We review a district court's denial of a motion for a sentence reduction under the First Step Act for an abuse of discretion. United States v. Bailey, 27 F.4th 1210, 1214 (6th Cir. 2022). The district court abuses its discretion in a sentencing proceeding if it "relies on clearly erroneous findings of fact, uses an erroneous legal standard, or improperly applies the law." United States v. Flowers, 963 F.3d 492, 497 (6th Cir. 2020) (quoting United States v. White, 492 F.3d 380, 408 (6th Cir. 2007)).^[2] Its sentencing decision must also be procedurally and substantively reasonable. United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018); United States v. Boulding, 960 F.3d 774, 783 (6th Cir. 2020).

The First Step Act affords district courts broad discretion and, other than identifying "legal errors in recalculating the Guidelines to account for the Fair Sentencing Act's changes," our review should not be "overly searching." Concepcion v. United States, 142 S.Ct. 2389, 2404 (2022).

Even when a defendant is eligible for a sentence reduction under the First Step Act, "[n]othing in [section 404 of the Act] shall be construed to require a court to reduce any sentence pursuant to this section." § 404(c), 132 Stat. at 5222. When a court elects to impose a reduced sentence, it must follow a two-step process in which the Guidelines remain the benchmark. Gall v. United States, 552 U.S. 38, 49 (2007). First, it must recalculate the movant's Guidelines range to reflect the retroactive application of the Fair Sentencing Act. Concepcion, 142 S.Ct. at 2402. This benchmark Guidelines range "anchor[s]" the sentencing proceeding. Id. at 2396, 2402 n.6 (quoting Peugh v. United States, 569 U.S. 530, 541 (2013)). Second, the district court must consider the factors outlined in 18 U.S.C. § 3553(a) to "ensure that the sentence is sufficient but not greater than necessary to achieve the purposes of sentencing." Flowers, 963 F.3d at 498.

A. Guidelines Recalculation

McNeal argues that the district court legally erred in refusing to apply this court's holding in Havis to remove the career offender enhancement from his recalculated Guidelines range. We disagree. In Havis, we held that attempted drug-trafficking offenses are not controlled substance offenses that would trigger the career-offender enhancement. 927 F.3d at 387. We extended that holding to drug-conspiracy offenses in United States v. Cordero, 973 F.3d 603, 626 (6th Cir. 2020). If sentenced today, McNeal would not be designated a career offender because his drug-conspiracy offense no longer serves as a predicate offense for the enhancement. § 401(b), 132 Stat. at 5221. That said, the district court did not err in failing to consider Havis and, in fact, could not have applied that decision when recalculating McNeal's Guideline range.

The First Step Act authorizes courts to modify a defendant's...