Eleventh Circuit Reverses Denial of First Step Act Relief Where District Court Construed Letter Asking About Eligibility To Be Motion Requesting Relief
by Douglas Ankney
The U.S. Court of Appeals for the Eleventh Circuit reversed an order of the U.S. District Court for the Middle District of Florida that construed a letter from Tydearain Smith asking whether he was eligible for relief under the First Step Act of 2018 (“FSA”) and requesting the appointment of counsel to be a motion requesting a sentence reduction and denied relief.
In 2007, Smith was convicted of possession of five grams or more of crack cocaine with the intent to distribute in violation of 21 U.S.C. § 841(b)(1)(B) and the brandishing of a firearm in the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He was sentenced to 210 months in prison on the cocaine conviction and a consecutive term of 84 months’ imprisonment on the firearm conviction. Based on Amendments 706 and 782 to the Sentencing Guidelines, Smith’s sentence on the cocaine conviction was reduced to 135 months.
In 2019, Smith wrote a letter to the District Court asking whether he was eligible for relief under the FSA and requesting appointment of counsel to file a motion under the FSA. The letter contained neither any grounds supporting a reduction nor made any substantive arguments on eligibility. The District Court appointed the Federal Public Defender’s Office to represent Smith and construed his letter as a motion for a sentence reduction under the FSA.
The probation office of the Middle District of Florida prepared a report advising the District Court that Smith was ineligible for a sentence reduction under the FSA. Without receiving briefing from either Smith or the Government, the court denied the motion, concluding Smith was ineligible for relief.
Smith filed both a pro se and a counseled motion for reconsideration, arguing he was eligible for relief. The Government responded, arguing Smith was ineligible for relief. The District Court denied the motion for reconsideration, again concluding Smith was ineligible for relief. Alternatively, the District Court opined that even if Smith were eligible, a “further reduction [was] not warranted” because “he perjured himself at trial, brandished a firearm during his crime, stipulated that the cocaine base he possessed was 94% pure, and had already benefitted from two sentence reductions by virtue of retroactive amendments to the sentencing guidelines.” Smith appealed.
The Eleventh Circuit stated that the first question to resolve is whether Smith is eligible for a sentence reduction under the FSA. It observed that at the time Smith was sentenced, the statutory penalties for his crack-cocaine offense were five to 40 years in prison. See Terry v. United States, 141 S. Ct. 1858 (2021), Smith’s enhancement under 21 U.S.C. § 851 increased the penalty to ten years to life imprisonment. But the Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 (“§ 2 of the Act”) with the § 851 enhancement altered the penalty for the crack-cocaine offense to up to 30 years in prison without any mandatory minimum. The Court explained that because the statutory penalty for his crack cocaine conviction has been modified by the retroactive application of the FSA, his conviction is now a “covered offense” under § 404 of the FSA. Consequently, Smith is eligible for relief under § 404(b) of the FSA, the Court concluded.
The next question to resolve is whether the District Court “erred in alternatively denying relief” to Smith under the FSA, according to the Court. Under the FSA, “a defendant can file only one motion for resentencing,” 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 (11th Cir. 2020). A court acting on its own initiative must provide fair notice to the parties and an opportunity to present their arguments. Day v. McDonough, 547 U.S. 198 (2006).
In the present case, the District Court construed Smith’s pro se motion for counsel, which did not contain any arguments about FSA eligibility or reasons why sentence reduction would be appropriate, as a motion for sentence reduction under the FSA. The problem with this, the Court explained, is that Smith did not have an opportunity to present arguments in support of his position because the District Court based its denial of the construed motion on FSA eligibility grounds. When Smith sought reconsideration, he understandably only addressed the issue of his eligibility. The District Court subsequently denied the parties’ joint request for a briefing schedule as well as Smith’s request to reply to the Government’s submission. Consequently, when the District Court issued its alternative ruling that Smith was not entitled to a sentence reduction on the merits, it did so without affording him an opportunity to present his arguments. Thus, the Court held that this was error.
The Court acknowledged that the FSA affords District Courts “wide berth … with respect to the ultimate exercise of discretion, but it does not speak to the process which must be provided to the parties.” However, the Court added that the “denial of an opportunity to litigate can never be harmless error,” and a “party must have his day in court.” Parker v. Williams, 862 F.2d 1471 (11th Cir. 1989); see also McNabb v. Comm’r Ala. Dep’t of Corr, 727 F.3d 1334 (11th Cir. 2013) (“the flat-out denial of the right to be heard on a material issue can never be harmless”). The District Court denied Smith his right to present his factual and legal arguments, and thus, the procedure it used to alternatively deny Smith a sentence reduction on the construed motion was not harmless error, the Court held.
Accordingly, the Court reversed the District Court’s order denying the construed motion and remanded for further proceedings consistent with its opinion. See: United States v. Smith, 30 F.4th 1334 (11th Cir. 2022).
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