USA v. Kinzie DeCarlos Thomas

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13681
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KINZIE DECARLOS THOMAS,
a.k.a. KD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:08-cr-00004-AW-GRJ-8
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2 Opinion of the Court 22-13681
____________________
Before J ORDAN, BRANCH , and L AGOA , Circuit Judges.
PER CURIAM:
Kinzie DeCarlos Thomas, a federal prisoner serving a
262-month sentence for one count of conspiracy to distribute and
possess cocaine and cocaine base, appeals from the district court’s
denial of his motion for a sentence reduction under § 404(b) of the
First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, 132
Stat. 5194. On appeal, he argues that the district court abused its
discretion by denying his request because: (1) the court did not
properly weigh the 18 U.S.C. § 3553(a) factors; and (2) the court’s
mention that it was without authority to reduce his sentence
“tainted” its analysis of the § 3553(a) factors. In response, the gov-
ernment concedes that he was eligible for such relief but opposes
his justifications in support of his motion.1 For the following rea-
sons, we affirm the district court’s denial.
I.
1 Although the district court questioned whether Thomas was ineligible for
such relief because his initial probationary sentence had been revoked, the
government has waived any challenge to eligibility under the First Step Act on
appeal. See United States v. Campbell, 26 F.4th 860, 871 (11th Cir. 2022) (en
banc). In any event, we conclude that the government’s concession is “well
supported” because Thomas’s post-revocation penalty relates to his original
offense. See United States v. Gonzalez, 71 F.4th 881, 884 (11th Cir. 2023) (ad-
dressing eligibility of a defendant who had his supervised release revoked).
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22-13681 Opinion of the Court 3
We review the denial of an eligible defendant’s request for a
reduced sentence under the First Step Act for an abuse of the dis-
trict court’s “broad discretion.” See Concepcion v. United States,
142 S. Ct. 2389, 2404 (2022).
II.
District courts lack inherent authority to modify a term of
imprisonment but may do so to the extent that a statute expressly
permits. 18 U.S.C. § 3582. In 2010, Congress enacted the Fair Sen-
tencing Act of 2010 (“Fair Sentencing Act”), Pub. L. No. 111-220,
124 Stat. 2372, which amended 21 U.S.C. §§ 841(b)(1) and 960(b) to
reduce the disparity between sentences for crack and powder co-
caine offenses. Dorsey v. United States, 567 U.S. 260, 268–69 (2012).
Section 2 of the Fair Sentencing Act changed the quantity of crack
cocaine necessary to trigger a statutory sentencing range of 10
years to life imprisonment from 50 grams to 280 grams and the
quantity necessary to trigger a statutory range of 5 to 40 years’ im-
prisonment from 5 grams to 28 grams. Fair Sentencing Act
§ 2(a)(1)(2). In 2012, the Supreme Court held that the Fair Sentenc-
ing Act and any related reduction in a defendant’s sentencing
guidelines range applied to defendants who committed their
crimes of conviction before the enactment of the Fair Sentencing
Act but who were sentenced after its enactment. Dorsey, 567 U.S.
at 281.
In 2018, Congress enacted the First Step Act, which retroac-
tively applied the statutory penalties for “covered offenses” under
the Fair Sentencing Act. See First Step Act § 404(a). The First Step
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4 Opinion of the Court 22-13681
Act permits district courts to reduce a previously imposed term of
imprisonment. First Step Act § 404(b). Thus, a court “that imposed
a sentence for a covered offense may . . . impose a reduced sen-
tence as if sections 2 and 3 of the Fair Sentencing Act [] were in
effect at the time the covered offense was committed.” Id. (emphasis
added). A movant’s offense is a “covered offense” if he was con-
victed of a crack cocaine offense that triggered the penalties in
§ 841(b)(1)(A)(iii) or (B)(iii), section 2 or 3 of the Fair Sentencing
Act modified its statutory penalties, and the offense was committed
before August 3, 2010. Id. § 404(a); Concepcion, 142 S. Ct. at 2401.
Assuming the defendant is eligible, a district court may mod-
ify a defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) if he was sentenced “based on a sentencing range that
has subsequently been lowered by the Sentencing Commission.”
The United States Sentencing Commission has issued a binding
policy statement, U.S.S.G. § 1B1.10, to govern sentence reductions
under § 3582(c)(2). Dillon v. United States, 560 U.S. 817, 819 (2010).
For a sentence to be reduced retroactively under § 3582(c)(2), the
court must determine whether “the guideline range applicable to
that defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection
(d).” U.S.S.G. § 1B1.10(a)(1); see also id. § 1B1.10, cmt. n.1(A) (ex-
plaining that eligibility for consideration under § 3582(c)(2) is “trig-
gered only by an amendment listed in subsection (d)”).
When considering a motion for a sentence reduction under
§ 3582(c)(2), a district court must engage in a two-step analysis.
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22-13681 Opinion of the Court 5
United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the
court must determine the sentence that it would have imposed,
given the defendant’s amended guidelines range. Id. at 780–81.
Second, the court must determine, in its discretion, whether to re-
duce the defendant’s sentence and, if so, to what extent. Id. at 781.
In exercising its preceding discretion, however, the district
court must consider the § 3553(a) factors. Id.; U.S.S.G. § 1B1.10
cmt. n..1(B)(i); accord United States v. Caraballo-Martinez, 866 F.3d
1233, 1239 (11th Cir. 2017). In particular, the district court must
consider: the nature and circumstances of the offense and the his-
tory and characteristics of the defendant; the need for the sentence
to afford adequate deterrence, protect the public from the defend-
ant’s further crimes, and provide the defendant with needed edu-
cation or treatment; the kinds of sentence and applicable guideline
range under the Sentencing Guidelines; any pertinent policy state-
ment issued by the Sentencing Commission; the need to avoid un-
warranted sentencing disparities between similarly situated de-
fendants; and the need to provide restitution to any victims of the
offense. 18 U.S.C. §§ 3553(a)(1), (2)(B)–(D), (4)–(7), 3582(c)(2). The
sentence must also reflect the seriousness of the offense, promote
justice for the law, and provide just punishment for the offense. Id.
§ 3553(a)(2)(A).
Finally, courts within this Circuit are permitted to articulate
alternative reasoning for how each reached their respective conclu-
sions. See Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301, 1315
(11th Cir. 2015).
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6 Opinion of the Court 22-13681
Here, we conclude that the district court did not abuse its
discretion in denying Thomas’s motion for a sentence reduction.
The district court properly concluded that the § 3553(a) factors did
not support Thomas’s sentence-reduction request, despite any mit-
igating factors, because he was found to be responsible for nearly a
kilogram of cocaine at sentencing, was convicted of several similar
drug offenses before, violated probation multiple times by engag-
ing in the same conduct, and has yet to serve a majority of his
262-month sentence. Further, there is no evidence or authority to
support his assertion that the district court’s § 3553(a) analysis was
tainted by its belief that he was ineligible for a sentence reduction.
And, to the extent it chose to do so, the district court was within its
authority to make alternative rulings on Thomas’s motion. See Kil-
gore, 805 F.3d at 1315.
Accordingly, we affirm the district court’s denial of
Thomas’s motion for a sentence reduction under § 404(b) of the
First Step Act.
AFFIRMED.
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