USA v. Dewayne Joseph

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12222
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEWAYNE JOSEPH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:10-cr-20511-JAL-1
____________________
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2 Opinion of the Court 21-12222
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before J ORDAN, J ILL PRYOR , and NEWSOM , Circuit Judges.
PER CURIAM:
Dewayne Joseph appeals the district court’s denial of his mo-
tion for a sentence reduction under § 404(b) of the First Step Act of
2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222. Although Joseph
was eligible for a sentence reduction, the district court declined to
exercise its discretion to reduce his sentence and denied the mo-
tion. On appeal, we affirmed, holding that the district court did not
abuse its discretion in denying the motion. The Supreme Court
subsequently granted Joseph’s petition for certiorari, vacated our
decision, and remanded for further consideration in light of
Con-
cepcion v. United States, 142 S. Ct. 2389 (2022).
See Joseph v.
United States, 143 S. Ct. 360 (2022). After careful consideration, we
again affirm.
I.
In July 2010, a federal grand jury charged Joseph with pos-
session of a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count One); possession with intent to distribute five
grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(iii) (Count Two); and using and carrying a fire-
arm during and in relation to, and possessing a firearm in further-
ance of, a drug trafficking crime, in violation of 18 U.S.C.
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21-12222 Opinion of the Court 3
§ 924(c)(1)(A) (Count Three). Before trial, the government notified
Joseph that it intended to seek an enhanced penalty on Count Two
because he had two prior convictions for felony drug crimes. Be-
cause Joseph’s offense involved five grams or more of crack cocaine
and he had at least one prior conviction for a felony drug offense,
his penalty range was 10 years to life.
See 21 U.S.C. § 841(b)(1)(B)
(2010).
Joseph proceeded to trial. At trial, the government intro-
duced evidence showing that while patrolling a neighborhood in
Miami, police officers encountered Joseph, who was riding a bicy-
cle. The officers tried to stop Joseph, but he rode away from them.
As the officers pursued him, he ignored their commands to stop,
ditched his bike, and tried to flee on foot. While running, Joseph
dropped some items, which turned out to be a semiautomatic pis-
tol and a plastic bag with a substance inside. At trial, Joseph stipu-
lated that the plastic bag held 30.3 grams of crack cocaine. The jury
returned a verdict finding Joseph guilty on all three counts. For
Count Two, the jury found that the offense involved five grams or
more of crack cocaine.
At sentencing, the district court determined that that Joseph
qualified as a career offender because he had two prior felony con-
victions for crimes that qualified as controlled substance offenses
for purposes of the career offender guideline.
See U.S.S.G. § 4B1.1.
Applying the career-offender guideline, the district court calculated
Joseph’s guidelines range as 292 to 365 months’ imprisonment.
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4 Opinion of the Court 21-12222
After considering the § 3553(a) sentencing factors,1 the court im-
posed a total sentence of 352 months’ imprisonment. This sentence
consisted of 120 months on Count One2 and 292 months on Count
Two, to run concurrently, followed by a mandatory consecutive
sentence of 60 months on Count Three.
See 18 U.S.C.
§ 924(c)(1)(A)(i). Joseph appealed his conviction and sentence, and
we affirmed.
See United States v. Joseph (“
Joseph I ”), 445 F. App’x
301 (11th Cir. 2011) (unpublished).
After Joseph committed the offense, Congress passed the
Fair Sentencing Act of 2010 to address disparities in sentences be-
tween offenses involving crack cocaine and those involving pow-
der cocaine.
See Pub. L. No. 111-220, 124 Stat. 2372 (2010);
see also
Kimbrough v. United States, 552 U.S. 85, 97–100 (2007) (providing
background on disparity). The Fair Sentencing Act increased the
1 Under § 3553(a), a district court is required to impose a sentence “sufficient,
but not greater than necessary, to comply with the purposes” of the statute.
18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness
of the offense; promote respect for the law; provide just punishment; deter
criminal conduct; protect the public from the defendant’s future criminal con-
duct; and effectively provide the defendant with educational or vocational
training, medical care, or other correctional treatment.
Id. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the
need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
2 The statutory maximum term of imprisonment for Count One was 10 years.
See 18 U.S.C. § 924(a)(2).
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21-12222 Opinion of the Court 5
quantity of crack cocaine necessary to trigger the highest statutory
penalties from 50 grams to 280 grams and the intermediate statu-
tory penalties from five grams to 28 grams.
See Fair Sentencing Act
§ 2; 21 U.S.C § 841(b)(1)(A)(iii), (B)(iii).
Later, Congress passed the First Step Act of 2018, Pub. L.
No. 115-391, 132 Stat. 5194 (2018). Among other things, the First
Step Act gives district courts the discretion to apply retroactively
the reduced statutory penalties for crack-cocaine offenses in the
Fair Sentencing Act to movants sentenced before those penalties
became effective.
United States v. Jackson, 58 F.4th 1331, 1334
(11th Cir. 2023). But a movant is ineligible for a sentence reduction
if his sentence “was previously imposed . . . in accordance with . . .
the Fair Sentencing Act.” First Step Act § 404(c).
After the First Step Act went into effect, Joseph moved for a
sentence reduction. The district court initially found that Joseph
was ineligible for a sentence reduction because his original sen-
tence had been imposed after the Fair Sentencing Act went into
effect. On appeal, we concluded that he was eligible for a sentence
reduction.
See United States v. Joseph (“
Joseph II ”), 842 F. App’x
471 (11th Cir. 2021) (unpublished). We vacated the district court’s
order and remanded the case so that the district court could decide
whether to exercise its discretion to award him a sentence reduc-
tion.
Id. at 477.
On remand, Joseph urged the district court to exercise its
discretion to reduce his sentence. He argued that a sentence reduc-
tion was warranted based on what his guidelines range would have
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6 Opinion of the Court 21-12222
been for Count Two if he had been sentenced under the Fair Sen-
tencing Act. According to Joseph, using the drug quantity found by
the jury (five grams of crack cocaine), his statutory maximum stat-
utory penalty under the Fair Sentencing Act would have been 30
years, not life.
See 21 U.S.C. § 841(b)(1)(C) (2011) (setting 30-year
statutory maximum for an offense involving less than 28 grams of
crack cocaine when the defendant had at least one prior conviction
for a felony drug offense). This change in the statutory maximum
penalty, he argued, reduced his offense level under the career-of-
fender guideline and yielded a guidelines range of 210 to 262
months’ imprisonment on Count Two.
See U.S.S.G. § 4B1.1.
Joseph further argued that the district court should exercise
its discretion to reduce his sentence because he had been rehabili-
tated in prison. He introduced evidence showing that he had com-
pleted educational programs while in prison and received positive
work performance reviews from his prison employer. Joseph
acknowledged that he had sustained 11 disciplinary infractions
while in prison, but he pointed out that most of the infractions
were several years old.
The government opposed Joseph’s motion, arguing that the
district court should decline to exercise its discretion. The govern-
ment began by addressing whether Joseph would have faced a
lower statutory penalty and guidelines range if he had been sen-
tenced under the Fair Sentencing Act. The government argued that
because he stipulated at trial that the drug weight was 30.3 grams
of crack cocaine, this drug quantity should be used to calculate his
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21-12222 Opinion of the Court 7
statutory penalty. With this drug quantity, the government said,
Joseph’s statutory penalty range under the Fair Sentencing Act
would have remained 10 years to life, and his guidelines range for
Count Two would have stayed at 292 to 365 months’ imprison-
ment.
In addition, the government argued that the § 3553(a) factors
did not justify a sentence reduction. The government maintained
that Joseph’s original sentence was reasonable given his personal
history and characteristics, the seriousness of his offense, the need
to provide deterrence, and the need to avoid unwarranted sentenc-
ing disparities.
In a written order, the district court denied Joseph’s motion
for a sentence reduction. The court began by considering Joseph’s
argument that because the jury found the offense involved five
grams of crack cocaine, he would have been subject to a reduced
statutory penalty and guidelines range if he had been sentenced un-
der the Fair Sentencing Act. The court observed that the parties
disagreed about what drug quantity would have been used to set
Joseph’s statutory penalty range if he had been sentenced under the
Fair Sentencing Act. The court calculated the statutory maximum
penalties and guidelines ranges that would apply if the offense in-
volved five grams of crack cocaine and if it involved 30.3 grams.
The court did not make any finding about the relevant drug quan-
tity. Instead, it explained that “[r]egardless of whether the relevant
quantity of crack cocaine is five grams or 30.3 grams, after consid-
ering the sentencing factors under 18 U.S.C. § 3553(a),” the court
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8 Opinion of the Court 21-12222
would “decline[] to exercise its discretion to reduce [Joseph’s] sen-
tence.” Doc. 140 at 13.3
The district court then explained why, even if the relevant
drug quantity for purposes of setting Joseph’s statutory penalty
range was five grams of crack cocaine, it would not exercise its dis-
cretion to reduce his sentence. The court discussed the nature and
circumstances of the offense: Joseph fled from law enforcement of-
ficers while carrying a pistol and crack cocaine. The court also
pointed to his history and characteristics: he had multiple prior con-
victions, including two prior convictions for possessing drugs with
intent to sell. In looking at this factor, the court considered Joseph’s
conduct while incarcerated, which included completing rehabilitat-
ing programs, maintaining employment, and incurring multiple
disciplinary infractions. After further considering the need to re-
flect the seriousness of the offense, provide adequate deterrence,
and to protect the public from future crimes, the court concluded
that Joseph’s original sentence was appropriate and that no reduc-
tion was warranted.
II.
We review for abuse of discretion a district court’s denial of
an eligible movant’s request for a sentence reduction under the
First Step Act.
United States v. Stevens, 997 F.3d 1307, 1312 (11th
3 “Doc.” numbers refer to the district court’s docket entries.
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21-12222 Opinion of the Court 9
Cir. 2021). A district court abuses its discretion when it applies an
incorrect legal standard or makes a clear error of judgment.
Id.
III.
Joseph argues that the district court abused its discretion in
declining to exercise its discretion to reduce his sentence on Count
Two. He argues that the district court erred because it never deter-
mined the relevant drug-quantity amount for purposes of setting
his statutory penalty range and thus never calculated what his stat-
utory penalty or guidelines range would have been for Count Two
under the Fair Sentencing Act. Although the district court later pur-
ported to consider the § 3553(a) factors, Joseph contends that the
analysis was inadequate because the district court never deter-
mined the relevant drug quantity.
When deciding First Step Act motions, district courts “bear
the standard obligation to explain their decisions,” and they must
give a “brief statement of reasons” to “demonstrate that they con-
sidered the parties’ arguments.”
Concepcion, 142 S. Ct. at 2404. But
“[a]ll that the First Step Act requires is that a district court make
clear that it reasoned through the parties’ arguments.”
Id. (altera-
tion adopted) (internal quotation marks omitted).
The district court’s order reflects that it considered the argu-
ments raised in Joseph’s First Step Act motion, including his argu-
ment that the relevant drug quantity was five grams of crack co-
caine. The court explained that even assuming the relevant drug
quantity was only five grams of crack cocaine (and thus Joseph
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10 Opinion of the Court 21-12222
faced lower statutory penalty and guidelines ranges), it would not
exercise its discretion to grant relief and explained why.4 We see
nothing improper about the district court using this approach and
making simplifying assumptions.
See United States v. Tinker, 14
F.4th 1234, 1240 (11th Cir. 2021) (explaining that a district court
may “assume that a condition is satisfied” and then explain why a
movant is not entitled to relief).
Joseph also suggests that the district court abused its discre-
tion because, if the drug-quantity, statutory-penalty-range, and
guidelines-range issues were decided in his favor, the district
court’s decision declining to reduce his sentence was unreasonable
given his rehabilitation.
But the Supreme Court’s decision in
Concepcion makes
clear that the First Step Act gives district courts “broad discretion”
when deciding whether to reduce an eligible defendant’s sentence.
142 S. Ct. at 2404. And we have explained that in deciding whether
to exercise its discretion, “a district court may consider the
4 We note that there is a circuit split about whether, when considering a mo-
tion for a sentence reduction under § 404(b) of the First Step Act, a district
court
must calculate a defendant’s revised guidelines range. Although we have
held that there is no bright-line rule requiring a district court to make such a
calculation, other circuits have disagreed.
See United States v. Gonzalez, No.
19-14381, F. 4th , 2023 WL 4096060, at *4 (11th Cir. June 21, 2023) (dis-
cussing circuit split). But this appeal does not implicate the circuit split because
the district court assumed that the relevant drug quantity was five grams of
crack cocaine and correctly set forth the applicable statutory maximum pen-
alty and guidelines range based on this drug quantity.
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21-12222 Opinion of the Court 11
sentencing factors set forth in 18 U.S.C. § 3553(a), but it is not re-
quired to do so.”
United States v. Gonzalez, No. 19-14381, F. 4th
, 2023 WL 4096060, at *3 (11th Cir. June 21, 2023).
We cannot say that the district court abused its discretion
here when, after considering the § 3553(a) factors, it decided not to
reduce Joseph’s sentence. The court discussed several of the appli-
cable § 3553(a) factors and explained that it reached its decision be-
cause of Joseph’s conduct involved in the offense, which included
fleeing from law enforcement while carrying crack cocaine and a
firearm; his extensive criminal history, which included prior con-
victions for drug distribution offenses; and his history of discipli-
nary infractions while incarcerated.5
See Gonzalez, 2023 WL
4096060, at *3 (affirming district court’s decision not to exercise its
discretion after considering the § 3553(a) factors).
In addition, Joseph’s 292-month sentence for Count Two re-
mained well below 360 months, the statutory maximum penalty
under the Fair Sentencing Act for an offense involving five grams
of crack cocaine when the defendant had a prior conviction for a
felony drug offense.
See 21 U.S.C. § 841(b)(1)(C) (2011). That Jo-
seph’s sentence was well below the statutory maximum indicates,
5 The Supreme Court’s decision in
Concepcion makes clear that the district
court was permitted to consider Joseph’s conduct while incarcerated when de-
ciding whether to exercise its discretion.
See Concepcion, 142 S. Ct. at 2396
(explaining that a court may consider “behavior in prison” when deciding a
First Step Act motion).
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12 Opinion of the Court 21-12222
but does not dictate, it was reasonable.
See United States v. Gold-
man, 953 F.3d 1213, 1222 (11th Cir. 2020).
Joseph nevertheless argues that the district court’s decision
was an abuse of discretion because the court gave “disproportion-
ate” weight to certain § 3553(a) factors when it focused on his prior
criminal history and his prison disciplinary infractions. Appellant’s
Br. at 20. But “[t]he weight given to any specific § 3553(a) factor is
committed to the sound discretion of the district court.”
United
States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016).
AFFIRMED.
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