United States v. Murphy

998 F.3d 549

UNITED STATES of America

v.James E. MURPHY, a/k/a Jimmy Murphy, a/k/a Black, Appellant

No. 20-1411

United States Court of Appeals, Third Circuit.

Argued November 17, 2020

Opinion filed: May 27, 2021

Amended August 4, 2021

OPINION OF THE COURT

AMBRO, Circuit Judge In United States v. Easter , 975 F.3d 318 (3d Cir. 2020), we established two goalposts concerning the scope of resentencings under the First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222. We first held that a district court must consider the sentencing factors in 18 U.S.C. § 3553(a) anew at resentencing. Id. at 324. But we also held that the First Step Act does not "entitle[ ]" a defendant "to a plenary resentencing hearing at which he would be present." Id. at 326. This case requires us to explore the space between the uprights.

Defendant-appellant James Murphy was convicted of two counts of distribution and possession of heroin and cocaine, and the District Court sentenced him to the mandatory minimum of 360 months’ imprisonment. This sentence was based in part on the quantity of drugs attributed to him and his designation as a career offender. He later sought a sentence reduction under the First Step Act, arguing that the District Court should reconsider both aspects of his initial sentence. It declined, and Murphy appeals to us.

The District Court correctly refused to reconsider Murphy's attributable drug amounts. But because Murphy was entitled to an accurate calculation of the Guidelines range at the time of resentencing, we still need to know whether he qualified for the career-offender enhancement based on the law as it stood at resentencing. We therefore vacate his sentence and remand for the Court to reconsider it.

I. BACKGROUND

In 2009, a federal jury convicted Murphy on two counts: (1) conspiracy to distribute and possess with the intent to distribute heroin and 50 grams or more of cocaine base,¹ under 21 U.S.C. § 846 ; and (2) distribution and possession with the intent to distribute heroin and 50 grams or more of cocaine base, under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The jury specifically found that the weight of the cocaine base attributable to Murphy on both counts was 50 grams or more, which triggered the highest mandatory minimum sentence at the time. Each count carried a mandatory minimum sentence of 10 years’ imprisonment and a maximum sentence of life.

At sentencing, the Probation Office "conservatively estimated" that Murphy was personally responsible for 595 grams of crack cocaine and 24 grams of heroin. PSR ¶ 12. It also concluded that Murphy qualified for a career-offender enhancement based on prior convictions in Maryland for robbery and second-degree assault. Taking the career-offender designation into account, Probation calculated Murphy's final offense level as 37 with a category VI criminal history. Based on that calculation, the applicable Guidelines sentencing range was 360 months to life. The District Court ultimately sentenced Murphy to 360 months on each count, to be served concurrently, and five years’ supervised release.

In 2019, Murphy moved for resentencing under Section 404(b) of the First Step Act. Probation filed an addendum to the presentence report ("PSR") decreasing Murphy's Guidelines sentencing range to 262–327 months, but that calculation preserved the previously attributed drug amounts and the career-offender designation from Murphy's initial sentencing. Murphy objected to both the drug amounts and the career-offender designation. As for the former, Murphy argued that the jury had only specifically found that he was responsible for 50 grams of cocaine base instead of the 595 grams in the PSR. And as to the career-offender designation, Murphy contended that his Maryland second-degree assault convictions were no longer predicates for career-offender status under intervening Fourth Circuit precedent.

The District Court overruled both objections, concluding that the First Step Act did not permit reconsideration of either factor on resentencing. However, it acknowledged that Murphy would not have qualified for the career-offender designation in a de novo sentencing. Thus, although it declined to remove formally the career-offender status, the Court varied downward from the Guidelines range and sentenced Murphy to 210 months’ imprisonment—the high end of the range if the career-offender designation had been formally removed. Murphy now appeals to us.

II. ANALYSIS²

As with all First Step Act cases, we start with the Fair Sentencing Act of 2010. That Act aimed to lessen sentencing disparities between convictions involving crack cocaine and convictions involving powder cocaine. United States v. Jackson , 964 F.3d 197, 200 n.2 (3d Cir. 2020). It did this by, among other things, increasing the amount of crack cocaine necessary to trigger higher statutory minimum sentences (Section 2) and eliminating mandatory minimums for simple possession (Section 3). Fair Sentencing Act of 2010, Pub. L. No. 111-220, §§ 2, 3, 124 Stat. 2372, 2372; see also Dorsey v. United States , 567 U.S. 260, 264, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). These changes meant more sentencing discretion for district court judges.

The First Step Act made certain provisions of the Fair Sentencing Act retroactive. Section 404(b) of the former provides that a trial court that has previously sentenced a criminal defendant for certain "covered offenses" may, on motion of the defendant or others, "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed." First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222. We recently observed that the Act "does not guarantee anyone a lower sentence"—it merely allows "an eligible prisoner to ask the court for a shorter one." United States v. Hart , 983 F.3d 638, 639 (3d Cir. 2020). Here, the Government does not dispute that Murphy was convicted of a "covered offense" entitling him to a First Step Act resentencing under § 404. The parties disagree only whether the District Court must have reconsidered Murphy's attributable drug amounts and career-offender status during that proceeding.

We have previously said that we typically review the denial of a request for sentencing modification under the First Step Act for abuse of discretion. See Easter , 975 F.3d at 322. But where, as here, a district court's decision rests on a pure question of law, our review is de novo . United States v. Birt , 966 F.3d 257, 259 n.2 (3d Cir. 2020).

A. Attributable Drug Amounts

Murphy first argues that the District Court should have reconsidered the drug quantity attributable to his offenses at resentencing. However, he does not assert that the Court made any factual errors for the drug quantity.³ Instead, he contends that the jury's drug-quantity findings are insufficient to support his sentence under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).⁴

In Alleyne , the Supreme Court held that "[a]ny fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury" and found beyond a reasonable doubt. Id. at 103, 133 S.Ct. 2151. This means that a jury must find, beyond a reasonable doubt, any drug quantities that increase the mandatory minimum punishment. See Birt , 966 F.3d at 262. The jury here found Murphy responsible for 50 grams or more of cocaine base, while he was sentenced based on the 595 grams of cocaine base noted in the PSR. At the time of his trial, a 50-gram finding triggered the highest possible mandatory minimum; however, the Fair Sentencing Act later increased that threshold from 50 grams to 280 grams. See Dorsey , 567 U.S. at 269, 132 S.Ct. 2321.

At the outset, Murphy does not explain how Alleyne changes the outcome in his case, as it appears his conviction complied fully with Alleyne under the mandatory minimum thresholds in place at that time. But even assuming he has a plausible explanation, it is unpersuasive for at least two reasons. First, in United States v. Jones , the Eleventh Circuit held that a resentencing court "is bound by a previous finding of drug quantity that could have been used to determine the movant's statutory penalty at the time of sentencing," including findings by a district court instead of a jury. 962 F.3d 1290, 1303 (11th Cir. 2020). The Court observed that Alleyne requires specific factual findings when those findings increase a defendant's sentence. Id. at 1303–04 ; see also Alleyne , 570 U.S. at 103, 133 S.Ct. 2151 ("[A]ny fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury." (emphasis added)). But under the First Step Act a district court may only decrease the sentence or leave it as is. See First Step Act § 404(b), 132 Stat. 5194, 5222 (providing that a court "may ... impose a reduced sentence"); see also Jones , 962 F.3d at 1303. We are thus persuaded that Alleyne has nothing to say about First Step Act proceedings because there is no danger that a defendant's sentence will increase on resentencing.

Second, § 404(b) of the First Step Act provides that a trial court that has previously sentenced a defendant may, on the defendant's motion, "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed" (emphasis added). In Easter we interpreted this language to mean that the First Step Act does not "entitle[ ]" a defendant "to a plenary resentencing hearing at which he would be present." 975 F.3d at 326. In so doing, we joined the "clear consensus among our sister circuits" that a First Step Act resentencing is not a "let's start all over." See id. (citing cases from the 5th, 6th, 9th, and 11th Circuits for this general proposition). This is because the "as if" provision in § 404(b) permits a district court to consider only the effect of sections 2 and 3 of the Fair...