USA v. Jose Manuel Saldana

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14707
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL SALDANA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:95-cr-00605-PAS-2
____________________
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2 Opinion of the Court 20-14707
Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Jose Saldana, a counseled federal prisoner, appeals following
the district court’s denial of his motions for a sentence reduction
under the First Step Act of 2018, Pub. L. No. 115-391, § 404, 132
Stat. 5194 (Dec. 21, 2018) (“First Step Act”). In 1996, Saldana was
convicted of one count of conspiring to possess with intent to dis-
tribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Count 1”);
and two counts of possession with intent to distribute cocaine, un-
der § 841(a)(1) (“Counts 4 and 8”). However, although the super-
seding indictment alleged that Saldana and his codefendants were
members of an organization distributing crack cocaine, and certain
counts charged him with possessing a “detectable amount of co-
caine,” none of the counts charged him with responsibility for any
specific amount of crack cocaine; the jury verdict also did not con-
tain any such finding.
The district court sentenced Saldana to life imprisonment as
to Counts 1, 4, and 8, followed by 5 years’ imprisonment as to each
of three other counts of conviction, set to run consecutively to each
other and all other counts, for a total of life plus 15 years’ impris-
onment, followed by 10 years of supervised release. Importantly,
his total sentence was based, in part, on the district court’s finding
that he was responsible for at least 1.5 kilograms of crack cocaine.
He appealed, but we affirmed his convictions and total sentence.
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20-14707 Opinion of the Court 3
See United States v. Velez, 234 F.3d 709 (11th Cir. 2000) (un-
published; table).
In the instant appeal, Saldana and the government agree that
the district court erred in concluding that it was bound to its sen-
tencing finding that he was responsible for at least 1.5 kilograms of
crack cocaine. They assert that, because there was no jury finding
to that effect, and because the Supreme Court issued its decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000), while his direct appeal
was pending, the district court erred in finding that he was ineligi-
ble for a sentence reduction based on the quantity of drugs neces-
sary to the jury verdict.
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),
cert. denied, 141 S. Ct. 2635
(2021).
In 2010, the Fair Sentencing Act amended 21 U.S.C.
§§ 841(b)(1) and 960(b) to reduce the sentencing disparity between
offenses for crack and powder cocaine.
See Fair Sentencing Act;
see also Dorsey v. United States, 567 U.S. 260, 268–69 (2012) (de-
tailing the history that led to the enactment of the Fair Sentencing
Act, including the Sentencing Commission’s criticisms that the dis-
parity between crack-cocaine and powder-cocaine offenses was dis-
proportional and reflected race-based differences). Section 2 of the
Fair Sentencing Act changed the quantity of crack cocaine neces-
sary to trigger a 10-year mandatory minimum from 50 grams to
280 grams and the quantity necessary to trigger a 5-year mandatory
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4 Opinion of the Court 20-14707
minimum from 5 grams to 28 grams. Fair Sentencing Act § 2(a)(1)–
(2);
see also 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). These amend-
ments were not made retroactive to defendants who were sen-
tenced before the enactment of the Fair Sentencing Act.
United
States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). Sections 5
through 8 of the Fair Sentencing Act stated that the United States
Sentencing Commission shall promulgate certain amendments to
the Sentencing Guidelines. Fair Sentencing Act §§ 5–8. Amend-
ment 750, which retroactively lowered the sentencing range appli-
cable to crack cocaine offenses by revising the crack cocaine quan-
tity tables listed in U.S.S.G. § 2D1.1(c), was promulgated pursuant
to § 8 of the Fair Sentencing Act.
See U.S.S.G. App. C, amend. 750
(2011).
In 2018, Congress enacted the First Step Act, which made
retroactive the statutory penalties for covered offenses enacted un-
der the Fair Sentencing Act.
See First Step Act § 404. Section 401(c)
of the First Step Act states that its amendments “shall apply to any
offense that was committed before the date of enactment of this
Act, if a sentence has not been imposed as of such date of enact-
ment.”
Id. § 401(c). 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 sections 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 statute, the statutory penalties for which were
modified by section 2 or 3 of the Fair Sentencing Act . . . , that was
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20-14707 Opinion of the Court 5
committed before August 3, 2010.”
Id. § 404(a). Section 404(c)
states that “[n]o court shall entertain a motion made under this sec-
tion to reduce a sentence if the sentence was previously imposed
or previously reduced in accordance with the amendments made
by sections 2 and 3 of the Fair Sentencing Act.”
Id. § 404(c). The
First Step Act further states that “[n]othing in this section shall be
construed to require a court to reduce any sentence pursuant to
this section.”
Id.
In
Jones, we considered the appeals of four federal prisoners
whose motions for a reduction of sentence pursuant to § 404(b)
were denied in the district courts.
See 962 F.3d at 1293. First, we
held that a movant was convicted of a “covered offense” if he was
convicted of a crack-cocaine offense that triggered the penalties in
§ 841(b)(1)(A)(iii) or (B)(iii).
Id. at 1301. District courts must con-
sult the record, including the movant’s charging document, the
jury verdict or guilty plea, the sentencing record, and the final judg-
ment, to determine whether the movant’s offense triggered the
penalties in § 841(b)(1)(A)(iii) or (B)(iii) and, therefore, was a cov-
ered offense.
Id. at 1300–01. In
Jones, we rejected the govern-
ment’s argument that, when conducting this inquiry, the district
court should consider the actual quantity of crack cocaine involved
in the movant’s violation.
Id. at 1301. Rather, the district court
should consider only whether the quantity of crack cocaine satis-
fied the specific drug-quantity elements in § 841—in other words,
whether his offense involved 50 grams or more of crack cocaine,
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6 Opinion of the Court 20-14707
therefore triggering § 841(b)(1)(A)(iii), or between 5 and 50 grams,
therefore triggering § 841(b)(1)(B)(iii).
Id.
Accordingly, any actual quantity of drugs involved in the
movant’s offense beyond the amount related to his statutory pen-
alty is not relevant to whether he was convicted of a covered of-
fense.
Id. at 1301–02. However, a court’s actual drug-quantity find-
ing remains relevant to the extent that its finding triggered a higher
statutory penalty.
Id. at 1302. Thus, a movant sentenced prior to
Apprendi, in which the Supreme Court held that facts, such as a
drug quantity, that increase a defendant’s statutory maximum
must be made by a jury,
see Apprendi, 530 U.S. at 490, cannot “re-
define his offense” to one triggering a lower statutory penalty
simply because the district court, not a jury, made the drug-quan-
tity finding relevant to his statutory penalty.
See Jones, 962 F.3d at
1302
. Applying this inquiry to the four movants in
Jones, we con-
cluded that all four were sentenced for covered offenses because
they were all sentenced for offenses that had penalties modified by
the Fair Sentencing Act.
Id. at 1302–03.
Next, we explained that a movant’s satisfaction of the “cov-
ered offense” requirement does not necessarily mean that the dis-
trict court is authorized to reduce his sentence.
Id. at 1303. Specif-
ically, the “as if” qualifier in § 404(b) of the First Step Act, which
states that any reduction must be “as if sections 2 and 3 of the Fair
Sentencing Act . . . were in effect at the time the covered offense
was committed,” imposes two limitations on the district court’s au-
thority.
Id. (quotation marks omitted) (alteration in original);
see
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20-14707 Opinion of the Court 7
First Step Act § 404(b). First, the district court cannot reduce a sen-
tence where the movant received the lowest statutory penalty that
would also be available to him under the Fair Sentencing Act.
See
Jones, 962 F.3d at 1303. Second, in determining what a movant’s
statutory penalty would have been under the Fair Sentencing Act,
the district court is bound by a previous drug-quantity finding that
could have been used to determine the movant’s statutory penalty
at the time of sentencing.
Id.
Applying these limitations, we held that, if a movant’s sen-
tence necessarily would have remained the same had the Fair Sen-
tencing Act been in effect—in other words, if his sentence were
equal to the mandatory minimum imposed by the Fair Sentencing
Act for the quantity of crack cocaine that triggered his statutory
penalty—then the Fair Sentencing Act would not have benefitted
him, and the First Step Act does not authorize the district court to
reduce his sentence.
Id. Under this “as-if” framework, we affirmed
the denials of two of the movants’ motions but vacated and re-
manded as to the other two because the district courts had author-
ity to reduce their sentences under the First Step Act, but it was
unclear whether the courts had recognized that authority.
Id. at
1304–05. We held that it was error for the district courts to con-
clude that a movant was ineligible based on (1) a higher drug-quan-
tity finding that was made for sentencing—not statutory—pur-
poses, (2) a movant’s career-offender status, or (3) a movant’s sen-
tence being at the bottom of the guideline range.
See id. at 1305.
Because it was ambiguous whether the district courts denied their
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8 Opinion of the Court 20-14707
motions for one of those reasons, we vacated and remanded the
denials for further consideration.
Id.
Finally, we noted that, although a district court may have
the authority to reduce a sentence under § 404 of the First Step Act,
it is not required to do so.
Id. at 1304. It held that a district court
has wide latitude to determine whether and how to exercise its dis-
cretion and that it may consider the 18 U.S.C. § 3553(a) factors and
a previous drug-quantity finding made for the purposes of relevant
conduct.
Id. at 1301, 1304.
As to the drug-quantity finding, we have clarified, applying
Jones, that “whether a court can look at a drug-quantity finding
made at sentencing to determine what a movant’s statutory pen-
alty range would have been under the Fair Sentencing Act gener-
ally
depends on whether the movant was sentenced before or after
the Supreme Court’s decision in [
Apprendi].”
United States v. Rus-
sell, 994 F.3d 1230, 1237 n.7 (11th Cir. 2021) (emphasis added);
see
also United States v. Cotton, 535 U.S. 625, 629–33 (2002) (reviewing
for plain error an
Apprendi claim where
Apprendi was decided
while the defendant’s direct appeal was pending).
We lack binding precedent expressly determining whether a
defendant whose appeal was pending when
Apprendi was decided
is entitled to the benefit of its holding. Nevertheless, the Supreme
Court has held that a new rule of criminal procedure applies to
cases on direct review, even if the defendant’s trial has already con-
cluded, with no exceptions for cases in which a new rule constitutes
a “clear break” with past precedent.
Edwards v. Vannoy, 141 S. Ct.
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20-14707 Opinion of the Court 9
1547, 1554 (2021);
see also Griffith v. Kentucky, 479 U.S. 314, 328
(1987). And the Government concedes in this appeal that Saldana
is entitled to the benefit of
Apprendi because his direct appeal was
pending when
Apprendi was decided.
Here, because
Apprendi was issued while Saldana’s direct
appeal was pending, he is entitled to the benefit of
Apprendi’s hold-
ing, and thus, is eligible for relief under § 404 of the First Step Act.
First, there is no dispute that Saldana’s convictions on Counts 1, 4,
and 8 were covered offenses under the First Step Act because they
were crack-cocaine offenses subject to the enhanced penalties un-
der § 841(b)(1)(A)(iii) or (B)(iii).
See Jones, 962 F.3d at 1301. Sec-
ond, under
Apprendi, the district court erred by relying on the 1.5
kilograms of crack cocaine for which it held Saldana responsible at
sentencing, because of the lack of any jury finding as to drug quan-
tity. If the Fair Sentencing Act had existed at the time of his sen-
tencing, Saldana could have received a much lower sentence.
See
21 U.S.C. § 841(b)(1)(C). Thus, because he was sentenced to life
imprisonment, and he has not already received the lowest statutory
penalty that would be available to him under the Fair Sentencing
Act, s
ee Jones, 962 F.3d at 1303, Saldana is eligible for a sentence
reduction under the First Step Act.
In other words, Saldana is entitled to the benefit of
Ap-
prendi’s holding. Based on the Supreme Court’s decisions in
Ed-
wards and
Griffith, because his case was on direct appeal when
Ap-
prendi was decided, he is entitled to the post-
Apprendi sentencing
scheme.
See Edwards, 141 S. Ct. at 1554;
Griffith, 479 U.S. at 328.
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10 Opinion of the Court 20-14707
Specifically,
Apprendi would have precluded the district court from
using the drug-quantity finding made at sentencing because it was
not charged in the indictment and proven beyond a reasonable
doubt by a jury.
Russell, 994 F.3d at 1237 n.7. Thus, the district
court erred in relying on the 1.5 kilograms of crack cocaine for
which it held Saldana responsible at sentencing.
Accordingly, Saldana is eligible for First Step Act relief.
Based on the “detectable amount” finding that was charged in the
indictment and proven beyond a reasonable doubt, Saldana’s stat-
utory penalties for Counts 1, 4, and 8 covered crack cocaine of-
fenses, which were originally calculated pursuant to 21 U.S.C. §
841(b)(1)(A)(iii) or (B)(iii), are now governed by the enhanced zero-
to-20-year imprisonment range under 21 U.S.C. § 841(b)(1)(C). 21
U.S.C. § 841(b)(1)(C). Because Saldana’s statutory penalty range
for his covered offenses would have differed had sections 2 and 3
of the Fair Sentencing Act been in place, the district court had au-
thority to reduce Saldana’s sentence under section 404 of the First
Step Act.
See Jones, 962 F.3d at 1300–04. Therefore, the district
court erred when it denied Saldana’s motion because it incorrectly
found that it lacked authority to consider a reduced sentence.
Id.
Thus, we vacate the district court’s order and remand to al-
low it to exercise its discretion on whether a sentence reduction is
warranted under § 404 of the First Step Act.
VACATED AND REMANDED.
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