USA v. Rodrick Slack

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11833
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
RODRICK SLACK,
a.k.a. Rat,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:08-cr-00061-LC-EMT-10
USCA11 Case: 22-11833 Document: 20-1 Date Filed: 04/10/2023 Page: 1 of 6

-- 1 of 6 --

2 Opinion of the Court 22-11833
____________________
Before GRANT, ANDERSON, and E DMONDSON, Circuit Judges.
PER CURIAM:
Rodrick Slack, a federal prisoner represented by counsel, ap-
peals the district court’s order granting Slack’s motion for a re-
duced sentence under section 404 of the First Step Act and 18
U.S.C. § 3582(c)(1)(B). No reversible error has been shown; we af-
firm.
In 2008, Slack was convicted of conspiracy to possess with
intent to distribute 5 kilograms or more of powder cocaine and 50
grams or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii), (iii), and 846. Slack was subject to a stat-
utory penalty of 10 years to life imprisonment. Slack’s guidelines
range was calculated as 360 months to life imprisonment. The sen-
tencing court imposed a sentence of 444 months’ imprisonment,
followed by 10 years’ supervised release.
In 2022, Slack moved for a sentence reduction under the
First Step Act. Slack argued that a reduced sentence was warranted
in the light of the reduced statutory penalties for crack-cocaine of-
fenses, the disparity between his sentence and the sentences of his
co-defendants, and his good conduct in prison. Slack sought a sen-
tence of time served.
The government conceded that Slack was eligible for relief
under the First Step Act. The government deferred to the district
USCA11 Case: 22-11833 Document: 20-1 Date Filed: 04/10/2023 Page: 2 of 6

-- 2 of 6 --

22-11833 Opinion of the Court 3
court’s discretion about whether, and to what extent, to reduce
Slack’s sentence.
After considering the parties’ pleadings -- and without a
hearing -- the district court granted in part Slack’s motion for a re-
duced sentence. The district court first determined that Slack’s of-
fense constituted a “covered offense” under the First Step Act. The
district court then determined that “some sentence reduction” was
appropriate under the circumstances. In particular, the district
court noted evidence of Slack’s post-conviction rehabilitation, in-
cluding that Slack had relatively few disciplinary actions, had
earned his GED, and had taken occupational classes while in
prison. The district court also explained, however, that it could not
overlook Slack’s history of violence or that Slack’s underlying of-
fense involved both a large quantity of drugs and a gun. Based on
these considerations, the district court reduced Slack’s sentence to
285 months, followed by 6 years of supervised release.
On appeal, Slack contends that the district court erred -- and
violated his rights under the Due Process Clause -- by imposing a
reduced sentence without first allowing Slack to appear at a hearing
and to exercise his right of allocution. Slack never requested a hear-
ing before the district court. Because Slack raises this argument for
the first time on appeal, we review the argument only for plain er-
ror.
See United States v. Lange, 862 F.3d 1290, 1293 (11th Cir.
2017).
Slack’s argument is foreclosed by our decision in
United
States v. Denson, 963 F.3d 1080 (11th Cir. 2020). In
Denson, we
USCA11 Case: 22-11833 Document: 20-1 Date Filed: 04/10/2023 Page: 3 of 6

-- 3 of 6 --

4 Opinion of the Court 22-11833
concluded expressly that “the First Step Act does not require dis-
trict courts to hold a hearing with the defendant present before rul-
ing on a defendant’s motion for a reduced sentence under the Act.”
See 963 F.3d at 1082. We observed that the plain text of the First
Step Act “does not mention, let alone mandate, a hearing.”
Id. at
1086. We also noted that Fed. R. Crim. P. 43 provides expressly
that a defendant’s presence is not required at a sentence-reduction
proceeding under 18 U.S.C. § 3582(c).
Id. at 1087. Because “the
right to be present under Rule 43 is at least as broad as the right
under the Due Process Clause,” we concluded that a defendant has
no due process right to be present at a section 3582 proceeding.
Id.
at 1087-88.
After concluding that a defendant has no right to be present
at a hearing on his First Step Act motion, we addressed separately
-- and rejected -- the argument in Denson’s case that a sentence re-
duction under the First Step Act was a “critical stage” requiring a
hearing under
United States v. Brown, 879 F.3d 1231 (11th Cir.
2018).
See id. at 1088-89. We first concluded that the “critical
stage” framework in
Brown (a case involving a 28 U.S.C. § 2255
motion) was inapplicable to sentence-modification proceedings un-
der section 3582(c).
Id. at 1088-89 (noting language in
Brown rec-
ognizing that a sentence-reduction under 3582(c) did not require a
defendant’s presence). “Alternatively, and as an independent hold-
ing,” we also determined that -- even under
Brown’s framework --
a First Step Act motion constituted no “critical stage” in the pro-
ceedings requiring a defendant’s presence.
Id. at 1089.
USCA11 Case: 22-11833 Document: 20-1 Date Filed: 04/10/2023 Page: 4 of 6

-- 4 of 6 --

22-11833 Opinion of the Court 5
In the present case, Slack says that
Denson has since been
abrogated in part by the Supreme Court’s decision in
Concepcion
v. United States, 142 S. Ct. 2389 (2022). The chief issue in
Concep-
cion was “whether a district court deciding a First Step Act motion
must, may, or may not consider intervening changes of law or
fact.”
See 142 S. Ct. at 2398. To the extent
Concepcion might have
undermined our thinking in
Denson, it appears to have done so
only for language in
Denson about a district court’s authority to
consider intervening changes in the law when ruling on a First Step
Act motion.
See id. at 2398 n.2 (collecting cases and citing
Denson
as among the circuit court decisions holding that a district court
“may not consider” intervening changes);
Denson, 963 F.3d at 1089
(stating -- in the alternative and independent portion of the opinion
applying the
Brown framework -- that a district court ruling on a
First Step Act motion “is not free . . . to reduce the defendant’s sen-
tence on the covered offense based on changes in the law beyond
those mandated by sections 2 and 3” of the Fair Sentencing Act).
We read nothing in
Concepcion as touching on a defend-
ant’s right to be present at or to speak at a hearing on his First Step
Act motion, let alone establishing plainly that the defendant’s pres-
ence at a hearing is mandated. Because
Concepcion does not con-
flict directly with our conclusion in
Denson that a district court is
not required to hold a hearing with the defendant present before
ruling on a First Step Act motion, we remain bound by that prece-
dent.
See United States v. Dudley, 5 F.4th 1249, 1265 (11th Cir.
2021) (“Under our prior precedent rule, ‘a prior panel’s holding is
USCA11 Case: 22-11833 Document: 20-1 Date Filed: 04/10/2023 Page: 5 of 6

-- 5 of 6 --

6 Opinion of the Court 22-11833
binding on all subsequent panels unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or
this court sitting
en banc.’”);
United States v. Kaley, 579 F.3d 1246,
1255 (11th Cir. 2009) (“To constitute an ‘overruling’ for the pur-
poses of th[e] prior panel precedent rule, the Supreme Court deci-
sion ‘must be clearly on point’ . . . [and must] actually abrogate or
directly conflict with, as opposed to merely weaken, the holding of
the prior panel.”).
Slack has identified no controlling authority establishing a
defendant’s right to be present at a hearing or a right to allocution
during a sentence-modification proceeding under the First Step
Act. Slack thus cannot show that the district court committed an
error that was plain when it imposed a reduced sentence without
first scheduling
sua sponte a hearing.
See Lange, 862 F.3d at 1296
(describing a plain error as “an error that is ‘obvious’ and is ‘clear
under current law’” and explaining that “there can be no plain error
where there is no precedent from the Supreme Court or this Court
directly resolving it”).
AFFIRMED.
USCA11 Case: 22-11833 Document: 20-1 Date Filed: 04/10/2023 Page: 6 of 6

-- 6 of 6 --