USA v. James Andrew Musgrove

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14828
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ANDREW MUSGROVE,
a.k.a. Ricky,
a.k.a. StarChild,
Defendant-Appellant.
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2 Opinion of the Court 20-14828
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:10-cr-00019-TKW-1
____________________
Before J ORDAN, G RANT, and L UCK , Circuit Judges.
PER C URIAM :
James Musgrove appeals the district court’s denial of his mo-
tion for a sentence reduction under section 404(b) of the First Step
Act. After careful review, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2010, Musgrove and a coconspirator were indicted for (1)
conspiring to possess with the intent to distribute five kilograms or
more of powder cocaine and fifty grams or more of crack cocaine,
and (2) possessing with the intent to distribute fifty grams or more
of crack cocaine. Musgrove pleaded guilty to both counts.
Because of his prior convictions, Musgrove was facing a
mandatory life sentence.
See 21 U.S.C. § 841(a)(1), (b)(1)(A) (2009)
(“If any person commits a violation of this subparagraph . . . after
two or more prior convictions for a felony drug offense have be-
come final, such person shall be sentenced to a mandatory term of
life imprisonment without release and fined in accordance with the
preceding sentence.”),
amended by 21 U.S.C. § 841 (2018). But,
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20-14828 Opinion of the Court 3
because the government filed a substantial assistance motion, the
district court was able to sentence Musgrove below the mandatory
minimum to 240 months’ imprisonment and five years of super-
vised release. In 2015, the district court reduced Musgrove’s sen-
tence to 192 months’ imprisonment because of retroactive changes
made to the sentencing guidelines.
In 2020, Musgrove moved under section 404(b) of the First
Step Act to reduce his sentence again. He argued (1) that he was
eligible for a sentence reduction under the First Step Act because
he was convicted of a “covered offense,” and (2) that the district
court should exercise its discretion to reduce his sentence because
he had completed several educational courses and because his be-
havior had improved during his term of imprisonment.
The government opposed his motion, arguing that
Musgrove’s conviction was not a “covered offense” because the
Fair Sentencing Act didn’t change the penalties for his conviction.
The government also argued that, even if Musgrove was convicted
of a “covered offense,” the district court should not reduce his sen-
tence because he had an extensive criminal history and because he
had eight disciplinary incidents in prison, including two incidents
that had occurred after the district court reduced his sentence in
2015.
The district court denied Musgrove’s motion, giving four
reasons. First, the district court concluded that Musgrove was in-
eligible for a sentence reduction because his conspiracy conviction
was not a “covered offense,” as it involved both powder and crack
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4 Opinion of the Court 20-14828
cocaine and the Fair Sentencing Act did not modify the penalties
for powder cocaine offenses. Second, the district court explained
that, even if the conspiracy conviction was a “covered offense,”
Musgrove was ineligible for a sentence reduction because he would
have received the same sentence based on the amount of powder
cocaine charged in the conspiracy count. Third, the district court
said that it “lack[ed] the authority to modify his sentence” because
Musgrove had received concurrent sentences and any reduction in
his sentence on the possession count would have no impact on his
total prison sentence.
And fourth, the district court concluded that, even if both of
Musgrove’s convictions were “covered offenses,” he was eligible
for a sentence reduction, and the district court was allowed to re-
duce his sentence, the district court still would not exercise its dis-
cretion to reduce Musgrove’s sentence because of: (1) the “large
amount of drugs” involved in Musgrove’s offenses—more than six-
teen kilograms of powder cocaine and over six hundred grams of
crack cocaine”; (2) “the fact that [Musgrove] primarily dealt in pow-
der cocaine whereas his co-defendant was more responsible for the
crack cocaine”; (3) Musgrove’s “extensive criminal history, much
of which was not scored in calculating his guidelines”; and (4)
Musgrove’s “less than perfect” prison disciplinary record. The dis-
trict court recognized that, while Musgrove’s recent disciplinary
record showed improvement, it was “troubling” that Musgrove
was still having “
any disciplinary issues at his age.”
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20-14828 Opinion of the Court 5
STANDARD OF REVIEW
We review de novo “whether a district court had the author-
ity to modify a term of imprisonment.”
United States v. Jones, 962
F.3d 1290, 1296 (11th Cir. 2020). We review for abuse of discretion
a district court’s denial of an eligible movant’s request for a reduced
sentence under the First Step Act.
Id.
DISCUSSION
Section 404(b) of the First Step Act gives a district court dis-
cretion to modify a prisoner’s sentence for a “covered offense” to
“impose a reduced sentence as if sections 2 and 3 of the Fair Sen-
tencing Act . . . were in effect at the time the covered offense was
committed.”
Jones, 962 F.3d at 1297;
see First Step Act of 2018,
Pub. L. No. 115-391, § 404(b), 132 Stat. 5194. A “covered offense”
is “a violation of a federal criminal statute, the statutory penalties
for which were modified by section 2 or 3 of the Fair Sentencing
Act of 2010, that was committed before August 3, 2010.” First Step
Act § 404(a).
Musgrove correctly contends, and the government con-
cedes, that the district court erred in concluding that Musgrove’s
conspiracy conviction was not a “covered offense” because it in-
volved both powder and crack cocaine. The district court didn’t
have the benefit of
United States v. Taylor, 982 F.3d 1295, 1297,
1300–01 (11th Cir. 2020), but we do. There, we held that a “cov-
ered offense” under the First Step Act includes a multi-drug con-
spiracy offense involving both powder and crack cocaine.
Id.
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Even so, that Musgrove was “
eligible for a sentence reduc-
tion under the First Step Act does not mean that he is
entitled to
one.”
Id. at 1302. Even though the district court erred in conclud-
ing that Musgrove wasn’t eligible for a reduced sentence under the
First Step Act, we can affirm because we already know that the dis-
trict court would not exercise its discretion to reduce Musgrove’s
sentence. Any error was harmless.
Cf. United States v. Robles, 408
F.3d 1324, 1327–28 (11th Cir. 2005) (recognizing that sentencing er-
rors are harmless when we “know with certainty beyond a reason-
able doubt what the district court would do upon remand”).
A district court may consider “the nature and circumstances
of the offense” and the defendant’s “history and characteristics”
when exercising its discretion not to reduce a sentence under the
First Step Act.
See United States v. Potts, 997 F.3d 1142, 1145 (11th
Cir. 2021) (“[A] district court may, but is not required to, consider
the § 3553(a) factors in deciding whether to exercise its discretion
and reduce a sentence under the First Step Act.”); 18 U.S.C. §
3553(a)(1). Here, the district court said it would not reduce
Musgrove’s sentence, even if it had discretion to do so, because of
Musgrove’s extensive criminal history, his “less than perfect”
prison disciplinary record, and the circumstances of his offense—
that Musgrove was primarily responsible for the powder cocaine
and that his offense involved more than sixteen kilograms of pow-
der cocaine and six hundred grams of crack cocaine. We’ve af-
firmed a district court’s discretionary decision not to reduce a de-
fendant’s sentence under the First Step Act based on similar facts.
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20-14828 Opinion of the Court 7
See, e.g.,
United States v. Gonzalez, 9 F.4th 1327, 1329, 1332 (11th
Cir. 2021) (affirming the district court’s discretionary decision not
to reduce the defendant’s sentence under the First Step Act based
on the defendant’s criminal history, drug offenses, and prison dis-
ciplinary record).
Musgrove’s arguments that the district court abused its dis-
cretion in declining to reduce his sentence are unpersuasive. First,
Musgrove argues that the district court “may have relied on the
now discredited conduct-based interpretation” of the First Step Act
because it found that Musgrove would be “subject to the same sen-
tence based upon the amount of powder cocaine charged in the
conspiracy.” But the district court said—explicitly—that it was not
relying on the conduct-based approach. The district court instead
considered the quantity of powder and crack cocaine involved in
Musgrove’s offense as part of its discretionary call about whether
to reduce Musgrove’s sentence, which it was allowed to do.
See
Taylor, 982 F.3d at 1302 (“[I]t is fair game for the district court to
consider any information relevant to its decision, including its pre-
vious findings regarding the quantities of crack and powder cocaine
involved in the conspiracy.”).
Second, Musgrove argues that the district court’s finding
that he “primarily dealt” in powder cocaine “strongly suggests that
the court’s discretion was influenced by an improper legal consid-
eration—that defendants convicted of a combination crack and
powder crime are not eligible for relief.” We disagree. The district
court concluded that “even if” Musgrove was eligible for a sentence
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reduction, his relative responsibility for the powder cocaine
weighed against reducing his sentence. The district court was al-
lowed to consider Musgrove’s relative culpability compared to that
of his similarly situated co-conspirator as part of the discretionary
decision on whether to reduce his sentence.
See 18 U.S.C. section
3553(a)(6). And it was allowed to consider that the powder cocaine
part of Musgrove’s offense triggered higher penalties than the crack
cocaine part.
See Taylor, 982 F.3d at 1302 (explaining that “the fact
that the powder cocaine element of [the defendant]’s offense still
triggers the highest tier of statutory penalties” is “relevant”). The
district court thus did not abuse its discretion in refusing to reduce
Musgrove’s sentence.
AFFIRMED.
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