USA v. Richard Daniel

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11495
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD DANIEL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:02-cr-20676-CMA-2
____________________
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2 Opinion of the Court 23-11495
Before R OSENBAUM , GRANT, and L AGOA , Circuit Judges
PER CURIAM:
Richard Daniel appeals the district court’s order denying his
motion to reduce his sentence under § 404(b) of the First Step Act
of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”), as to his
convictions for conspiracy to deal in firearms, distribution of mari-
juana, and possession of a firearm in furtherance of a drug traffick-
ing crime. The government moved for summary affirmance, argu-
ing that the court properly denied the motion as to those offenses
because they were not covered offenses and any argument that the
district court had discretion to reduce his sentence on non-covered
offenses is foreclosed by United States v. Denson, 963 F.3d 1080 (11th
Cir. 2020), and United States v. Files, 63 F.4th 920 (11th Cir. 2023), pet.
for cert. filed, No. 22-1239 (U.S. June 26, 2023).
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a
matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the
appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).
The Fair Sentencing Act, enacted on August 3, 2010,
amended 21 U.S.C. § 841(b)(1) to reduce the sentencing disparity
between crack and powder cocaine. Fair Sentencing Act; see Dorsey
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23-11495 Opinion of the Court 3
v. United States, 567 U.S. 260, 268-69 (2012) (detailing the history that
led to the enactment of the Fair Sentencing Act, including the Sen-
tencing Commission’s criticisms that the disparity between crack
and powder cocaine offenses was disproportional and reflected
race-based differences). Specifically, § 2(a)(1) raised the quantity of
crack cocaine necessary to trigger a 10-year mandatory minimum
sentence from 50 to 280 grams, and § 2(a)(2) raised the quantity
threshold to trigger a 5-year mandatory minimum from 5 grams to
28 grams. Fair Sentencing Act § 2(a)(1)–(2); 21 U.S.C.
§ 841(b)(1)(A)(iii), (B)(iii). These amendments were not made ret-
roactive to defendants who were sentenced before the enactment
of the Fair Sentencing Act. United States v. Berry, 701 F.3d 374, 377
(11th Cir. 2012).
In 2018, Congress enacted the First Step Act, which made
retroactive for “covered offenses” the statutory penalties enacted
under the Fair Sentencing Act. See First Step Act § 404. Under
§ 404(b) of the First Step Act, “[a] court that imposed a sentence
for a covered offense may . . . impose a reduced sentence as if sec-
tions 2 and 3 of the Fair Sentencing Act . . . were in effect at the
time the covered offense was committed.” Id. § 404(b). The statute
defines “covered offense” as “a violation of a Federal criminal stat-
ute, the statutory penalties for which were modified by section 2 or
3 of the Fair Sentencing Act . . . that was committed before August
3, 2010.” Id. § 404(a). The First Step Act adds that “[n]o court shall
entertain a motion” under § 404 for a sentence that “was previously
imposed or previously reduced in accordance with” sections 2 and
3 of the Fair Sentencing Act, or “if a previous motion made under
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4 Opinion of the Court 23-11495
this section . . . was . . . denied after a complete review of the mo-
tion on the merits.” Id. § 404(c).
In Denson, we concluded, as our main holding, “that the First
Step Act does not require district courts to hold a hearing with the
defendant present before ruling on a defendant’s motion for a re-
duced sentence under the Act.” 963 F.3d at 1082. As an alternate
and independent holding, we concluded that a sentencing modifi-
cation under the First Step Act is not a critical stage in the proceed-
ings under the two-part test in United States v. Brown, 879 F.3d 1231
(11th Cir. 2018), contrary to Denson’s arguments on appeal. Id. at
1088–89. We concluded that the First Step Act does not authorize
a plenary resentencing and instead “is a limited remedy.” Id. at
1089. In so concluding, we reasoned that a district court may “re-
duce a defendant’s sentence only on a covered offense and only as
if sections 2 and 3 of the Fair Sentencing Act were in effect when
he committed the covered offense.” Id. (quotation marks omitted).
We also reasoned that a district court is not free to: (1) recalculate
the defendant’s original Guidelines calculations unaffected by sec-
tions 2 and 3; (2) reduce the defendant’s sentence on the covered
offense based on other changes in the law; or (3) reduce the defend-
ant’s sentences on non-covered offenses. Id. We also referenced
the idea that a § 404(b) motion was a § 3582(c)(1)(B) proceeding.
Id. at 1088.
The Supreme Court held in Concepcion v. United States that
sentencing courts may consider intervening changes of law or fact
in adjudicating a First Step Act motion. 142 S. Ct. 2389, 2396 (2022).
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23-11495 Opinion of the Court 5
The Supreme Court stated that, while courts must consider these
arguments when raised by the parties, whether to reduce the de-
fendant’s sentence remains within their sound discretion. Id. The
Court explained that sentencing courts have historically had wide
latitude to consider any information relevant to understanding a
defendant’s individual circumstances, and “[n]othing in the text and
structure of the First Step Act expressly, or even implicitly, over-
comes the established tradition of district court’s sentencing discre-
tion.” Id. at 2401. In so holding, the Supreme Court overruled our
prior holding in Denson that a court cannot reduce a defendant’s
sentence based on changes in the law beyond those mandated by
the Fair Sentencing Act. Id. at 2398 n.2 (citing Denson, 963 F.3d at
1089).
In Files, we recently explained that Concepcion abrogated as-
pects of Denson regarding whether a court adjudicating a First Step
Act motion could consider changes in law unrelated to those spec-
ified in the Fair Sentencing Act but that Concepcion did not abrogate
Denson’s holding that a court could not reduce defendants’ sen-
tences for non-covered offenses. 63 F.4th at 930–31. We also ex-
plained that the Supreme Court’s discussion in Concepcion per-
tained to the absence of limitations by Congress on how a district
court exercises its discretion in reducing a defendant’s sentence, not
its authority to do so in the first place. Id. at 931. We confirmed
that a district court can consistently apply “Denson’s holding limit-
ing the categories of sentences that can be reduced and Concepcion’s
holding empowering courts to exercise broad discretion in impos-
ing reduced sentences for those qualifying offenses.” Id.
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6 Opinion of the Court 23-11495
Under the prior panel precedent rule, “a prior panel’s hold-
ing is binding on all subsequent panels unless and until it is over-
ruled or undermined to the point of abrogation by the Supreme
Court or this [C]ourt sitting en banc.” United States v. Dudley, 5 F.4th
1249, 1265 (11th Cir. 2021) (quotation marks omitted).
We thus conclude that summary affirmance is warranted
here because the government’s position is correct as a matter of
law. Groendyke Transp., 406 F.2d at 1162. Notably, Daniel does not
dispute that the offenses are non-covered offenses. As such, Dan-
iel’s arguments are foreclosed by this Court’s prior precedent in
Denson and Files. Denson, 963 F.3d at 1088–89; Files, 63 F.4th at 930–
31; Dudley, 5 F.4th at 1265. Further, any argument that Concepcion
abrogated Denson is foreclosed by Files. Files, 63 F.4th at 930–31.
Other than Concepcion, Daniel does not point to any case from this
Court or the Supreme Court that abrogated Denson and Files. Dud-
ley, 5 F.4th at 1265.
Because the government’s position is correct as a matter of
law, we GRANT the government’s motion for summary affirmance
and affirm the district’s order denying Daniel’s motion to reduce
his sentence under § 404(b) of the First Step Act. Groendyke Transp.,
406 F.2d at 1162.
AFFIRMED.
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