USA v. Bobbie Lane Kendle

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13296
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBIE LANE KENDLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:04-cr-20486-KMM-1
____________________
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2 Opinion of the Court 19-13296
Before WILSON, J ORDAN, and BLACK , Circuit Judges.
PER CURIAM:
Bobbie Lane Kendle, a counseled federal prisoner, appeals
the district court’s orders denying his motion to reduce his sen-
tence under the First Step Act of 2018, Pub. L. No. 115-391, § 404,
132 Stat. 5194 (Dec. 21, 2018) (First Step Act), and declining to
grant reconsideration. Kendle filed his principal brief, and he and
the Government now jointly move for summary reversal based
on the framework outlined in
United States v. Jones, 962 F.3d
1290 (11th Cir. 2020),
cert. denied, 141 S. Ct. 2635 (2021), and to
substitute the same motion for Kendle’s initial brief. They argue
Jones makes clear that Kendle was convicted of a “covered of-
fense” within the meaning of the First Step Act and he is eligible
for relief because he has not already received the lowest statutory
penalty that would be available to him under the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (Fair Sentencing
Act). Finally, they assert
Jones makes clear the district court erred
in finding Kendle ineligible for a reduction based on the fact he
was sentenced as a career offender under the guidelines and be-
cause his guideline range did not change. Noting the district
court issued its denials before this court decided
Jones, they move
this Court to summarily reverse the district court’s order and re-
mand for reconsideration in light of
Jones.
We agree with the parties that
Jones applies to this case as
Kendle was convicted of a covered offense within the meaning of
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19-13296 Opinion of the Court 3
the First Step Act.
Jones, 962 F.3d at 1298 (holding a movant has a
“covered offense” if his offense triggered a statutory penalty that
has since been modified by the Fair Sentencing Act). Because § 2
of the Fair Sentencing Act “modified the statutory penalties for
crack-cocaine offenses that have as an element the quantity of
crack cocaine provided in subsections 841(b)(1)(A)(iii) and
(B)(iii),” a movant has a covered offense if he was sentenced for
an offense that triggered one of those statutory penalties.
Jones,
962 F.3d at 1298. In 2005, Kendle was convicted by a jury of pos-
session with intent to distribute 5 grams or more of crack cocaine,
in violation of 21 U.S.C. § 841(a)(1). The PSI set out Kendle’s
statutory minimum and maximum as ten years to life pursuant to
21 U.S.C. §§ 841(b)(1)(B)(iii) (effective Nov. 2, 2002 to Mar. 8,
2006) (detailing penalties for 5 grams or more of crack cocaine)
and 851. The statutory penalties under § 841(b)(1)(B)(iii) were
modified by § 2 of the Fair Sentencing Act. Fair Sentencing Act
§ 2(a)(1);
see also 21 U.S.C. § 841(b)(1)(B)(iii) (effective Dec. 21,
2018). Because Kendle’s offense was a federal offense, the statuto-
ry penalties were modified by § 2 of the Fair Sentencing Act, and
he committed his offense before the Fair Sentencing Act became
effective on August 3, 2010, his offense is a covered one.
Jones,
962 F.3d at 1298;
see First Step Act § 404(a).
Further, the “as if” requirement in
Jones did not limit the
district court’s authority to reduce Kendle’s sentence. For the “as
if” determination, the court is bound by a previous finding of drug
quantity that could have been used to determine the movant’s
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4 Opinion of the Court 19-13296
statutory penalty at the time of sentencing.
Jones, 962 F.3d at
1303. Here, the drug quantity finding that was used to determine
Kendle’s statutory penalty at sentencing was the jury’s finding of
5 grams or more of crack cocaine. While the district court found
at sentencing that the offense involved 78.37 grams of crack co-
caine for purposes of calculating Kendle’s offense level under the
guidelines, that finding could not have been used to determine
Kendle’s statutory penalty because he was sentenced after
Ap-
prendi and thus is not relevant to the “covered offense” determi-
nation here.
Jones, 962 F.3d at 1301-02. The jury’s drug quantity
finding of 5 grams or more that triggered Kendle’s statutory pen-
alties at sentencing would now trigger the statutory penalties for
crack cocaine offenses of less than 28 grams after the Fair Sentenc-
ing Act, which results in a statutory sentencing range of 0 to 30
years after applying the § 851 enhancement for Kendle having a
prior conviction for a felony drug offense.
See Fair Sentencing
Act § 2(a)(2). Because Kendle was sentenced to 30 years’ impris-
onment, he was eligible for a sentence reduction because he did
not receive the lowest statutory penalty that would be available
to him under the Fair Sentencing Act,
i.e., 0 years’ imprisonment.
Jones, 962 F.3d at 1303.
The district court found Kendle ineligible for a sentence re-
duction, in part, because it found the covered offense determina-
tion should be made using its drug quantity finding of 78.37 grams
of crack cocaine at sentencing, which was incorrect under
Jones.
The district court also found Kendle ineligible for a sentence re-
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19-13296 Opinion of the Court 5
duction because he was a career offender and his guideline range
was unchanged after the Fair Sentencing Act, which
Jones clari-
fied were not relevant factors in determining whether a movant
was eligible for a sentence reduction.
Id. at 1305. Specifically, this
Court in
Jones vacated and remanded the denial of relief where
the defendant’s “commuted sentence [was] at the bottom of the
guideline range, which may have caused the district court to con-
clude that [he] was ineligible for a further reduction to his sen-
tence.” 962 F.3d at 1305. Finally, the district court’s order denying
Kendle’s motion for reconsideration reiterated its previous find-
ings and made clear the court did not believe the First Step Act
gave it discretion to reduce his sentence, which was error.
See id.
Thus, in light of
Jones, Kendle was eligible to receive a sen-
tence reduction under the First Step Act, and the parties’ position
is “clearly right as a matter of law.”
See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969) (stating summary
disposition is appropriate where “the position of one of the parties
is clearly right as a matter of law so that there can be no substan-
tial question as to the outcome of the case”). Accordingly, we
GRANT the parties’ joint motions for summary reversal and to
substitute the joint motion for Kendle’s initial brief and REMAND
to the district court to consider whether to exercise its discretion
to reduce Kendle’s sentence.1
REVERSED and REMANDED.
1 We DENY as moot the parties’ motion to stay the briefing schedule.
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