USA v. Demetrius Germaine Kennedy

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11999
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS GERMAINE KENNEDY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:02-cr-00043-AW-GRJ-3
____________________
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2 Opinion of the Court 22-11999
Before N EWSOM, G RANT, and L UCK , Circuit Judges.
PER C URIAM:
Demetrius Germaine Kennedy appeals the district court’s
denial of his motion for a sentence reduction under section 404 of
the First Step Act. We affirm.
Kennedy is serving a thirty year prison sentence for traffick-
ing cocaine. Despite his young age of twenty-two at the time of his
arrest, Kennedy had amassed an expansive criminal record.
Among other things, he’d been convicted of grand theft, armed
robbery with a firearm, and the sale of marijuana. He’d also threat-
ened a woman he suspected was a government informant.
Once in prison, Kennedy’s behavior didn’t improve. He
racked up dozens of disciplinary infractions, including entries for
fighting, drug or alcohol possession, engaging in sexual acts, dis-
ruptive conduct, destruction of property, tampering with security
devices, threats, and assault.
After numerous unsuccessful efforts to reduce his sentence,
Kennedy moved for a sentence reduction under the First Step Act.
He argued that: (1) his sentence—which was the mandatory mini-
mum at the time of his conviction—exceeded the minimum avail-
able under current law; (2) the sentencing judge erred in finding
him responsible for twenty kilograms of cocaine, when the jury
had found him guilty of conspiring to distribute only fifty grams of
cocaine base; and (3) he had a supportive family, expressed re-
morse, and improved himself while incarcerated by taking classes.
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22-11999 Opinion of the Court 3
He did acknowledge that his disciplinary record wasn’t “squeaky
clean” and that he’d struggled with drug addiction but stated that
he’d been drug free for some time.
The government responded that the relevant facts and fac-
tors weighed against granting a sentence reduction. Specifically, it
argued that: (1) Kennedy was responsible for a large quantity of
cocaine and cocaine base and had threatened a woman he thought
had spoken with the Drug Enforcement Administration; (2) he had
an extensive criminal history; (3) notwithstanding the new manda-
tory minimum, based on his sentencing factors, his guideline range
would remain the same as before if Kennedy had committed the
crimes today; and (4) despite Kennedy’s steps to educate himself,
he had a long history of misbehavior in prison, as demonstrated by
the full disciplinary record the government attached to its re-
sponse.
The district court denied Kennedy’s motion. Although it
found that he was eligible for a reduction under section 404, it ob-
served that: (1) Kennedy’s underlying crimes were serious, and the
amount of cocaine for which he was responsible far exceeded the
adjusted statutory thresholds under both the law at the time of his
sentencing and current law; (2) this conduct was worsened by his
threatening a witness; (3) he had a long criminal history and a bad
prison disciplinary record; and (4) his guideline range, if calculated
today, would remain thirty years to life. All of this, the district
court determined, weighed against a reduction.
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4 Opinion of the Court 22-11999
The district court also noted that certain factors weighed in
favor of granting a sentence reduction—namely: (1) Kennedy’s ed-
ucational pursuits, (2) his expressed remorse, and (3) the young age
at which he was convicted. Ultimately, though, the district court
found that these mitigating factors didn’t outweigh the aggravating
ones.
On appeal, Kennedy argues that the district court considered
impermissible information in reaching its decision and failed to ad-
equately consider his rehabilitation. Specifically, he contends that:
(1) under United States v. Alleyne, 570 U.S. 99 (2013), the district
court erred in considering the twenty kilograms of cocaine at-
tributed to him at sentencing, because the jury had found him re-
sponsible for only fifty grams of cocaine base; (2) the district court
failed to properly consider his rehabilitation while incarcerated;
and (3) the district court erred by referring to his disciplinary his-
tory, which he asserts wasn’t entered into the record, and by ruling
without all of the relevant information.
We review the denial of an eligible defendant’s request for a
reduced sentence under the First Step Act for abuse of the district
court’s “broad discretion.” Concepcion v. United States, 142 S. Ct.
2389, 2404 (2022). “A district court abuses its discretion when it
applies an incorrect legal standard or makes a clear error of judg-
ment.” United States v. Stevens, 997 F.3d 1307, 1312 (11th Cir. 2021).
“Section 404(c) of the First Step Act confers particular discretion,
clarifying that the Act does not require a court to reduce any sen-
tence.” Concepcion, 142 S. Ct. at 2404 (quotation omitted). The
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22-11999 Opinion of the Court 5
district court “may consider evidence of a defendant’s rehabilita-
tion since his prior sentencing,” as well as “postsentencing evidence
of violence or prison infractions” and any other “intervening
changes of law or fact in exercising [its] discretion to reduce a sen-
tence pursuant to the First Step Act.” Id. at 2399, 2401, 2404. We
may not substitute our judgment for that of the district court re-
garding the appropriateness of a particular sentence. Id. at 2404.
“[W]hen deciding a First Step Act motion, district courts bear the
standard obligation to explain their decisions and demonstrate that
they considered the parties’ arguments.” Id. The statute requires
only that the “district court . . . demonstrate that it has considered
the arguments before it”—not to make a “point-by-point rebuttal
of the parties’ arguments.” Id. at 2405.
We conclude that the district court didn’t abuse its broad
discretion by declining to reduce Kennedy’s sentence under the
First Step Act. First, the district court didn’t err in considering the
drug quantities for which it found Kennedy responsible. True, in
Alleyne, the Supreme Court held that any fact which increases the
mandatory minimum is an “element” that must be submitted to a
jury. 570 U.S. at 116. But in the wake of Alleyne, we held that “a
district court may continue to make guidelines calculations based
upon judicial fact findings and may enhance a sentence—so long as
its findings do not increase the statutory maximum or minimum
authorized by facts determined in a guilty plea or jury ver-
dict.” United States v. Charles, 757 F.3d 1222, 1225 (11th Cir. 2014).
Accordingly, the district court was within its discretion to consider
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6 Opinion of the Court 22-11999
as relevant the drug quantities attributed to Kennedy at sentencing.
See id.; Concepcion, 142 S. Ct. at 2398.
Second, the district court didn’t fail to consider Kennedy’s
rehabilitation argument; instead, it specifically discussed his reha-
bilitation, pointing to his continued education in prison and expres-
sion of remorse as mitigating factors weighing in favor of a sen-
tence reduction. Although Kennedy may believe that the district
court didn’t place enough weight on this factor, it met its duty to
consider his arguments, and we may not substitute our judgment
for that of the district court. See Concepcion, 142 S. Ct. at 2404–05.
Finally, Kennedy’s arguments that the district court erred by
considering his disciplinary history and by ruling without all the
necessary information in the record are meritless. But the Supreme
Court has said that district courts may consider “prison infractions”
as part of the discretionary decision to reduce a sentence under the
First Step Act. See id. at 2395. And everything was in the record.
Kennedy submitted certain documents in support of his motion,
and the government entered his disciplinary record and transcript
into the record before the district court issued its ruling. Accord-
ingly, we affirm.
AFFIRMED.
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