USA v. Guerly Alexis

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13936
Non-Argument Calendar
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D.C. Docket No. 3:02-cr-00094-RV-MD-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LESLY ALEXIS,
a.k.a. X,
a.k.a. X-MAN,
Defendant - Appellant.
________________________
No. 19-13937
Non-Argument Calendar
________________________
D.C. Docket No. 3:02-cr-00094-RV-CJK-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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2
GUERLY ALEXIS,
a.k.a. BO,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(February 12, 2021)
Before JORDAN, ROSENBAUM, and ED CARNES, Circuit Judges.
PER CURIAM:
Lesly Alexis and Guerly Alexis both appeal the district court’s denial of
their respective motions to reduce their sentences under the First Step Act of 2018,
Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222.1
I.
After a jury trial in 2003 Lesly Alexis was convicted of one count of
conspiracy to possess with intent to distribute more than 5 kilograms of cocaine
powder and more than 50 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii)–(iii), and 846. The district court found him accountable
for 113.65 kilograms of cocaine base and calculated his guidelines range as 360
1 We have consolidated their appeals. See Fed. R. App. P. 3(b)(2).
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months to life. In July 2003, the court sentenced Lesly2 to 384 months
imprisonment.
In 2010 Guerly Alexis, after pleading guilty, was convicted of one count of
conspiracy to possess with intent to distribute more than 5 kilograms of cocaine
powder and more than 50 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(ii)–(iii), and 846. The district court found him accountable
for 15.58 kilograms of cocaine base and calculated his guidelines range as 292 to
365 months imprisonment. On August 24, 2010, the court sentenced Guerly to 330
months imprisonment.
In 2019 Lesly and Guerly both moved for a sentence reduction under the
First Step Act, which made retroactive certain sentencing changes for crimes that
had their statutory penalties modified by the Fair Sentencing Act of 2010. The
district court denied both motions, finding that each movant was ineligible for a
sentence reduction under the First Step Act. As the basis for denial, the court gave
two reasons applicable to both Lesly and Guerly. First, the court reasoned that the
Fair Sentencing Act “had no impact on the statutory penalties that [they] faced”
because they were convicted “of an offense that involved 5 kilograms or more of
powder cocaine, an amount that would require [them] to face the same penalty
2 Lesly and Guerly Alexis are brothers who share the same last name, so to distinguish
them we will refer to them by first name.
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even if [they] were sentenced today.” Second, the court reasoned that the amount
of crack cocaine “attributed to [them] at sentencing would also require the same
penalty” under the Fair Sentencing Act. The court gave an additional reason that
Guerly specifically was ineligible: he had been sentenced after the Fair Sentencing
Act went into effect. Having found Lesly and Guerly ineligible for relief under the
Act, the court concluded that it lacked authority to reduce their sentences and
denied their motions.
II.
We review de novo whether a district court had the authority to modify a
term of imprisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir.
2020). A district court “may not modify a term of imprisonment once it has been
imposed” except in limited circumstances, one of which is when it is “expressly
permitted by statute.” 18 U.S.C. § 3582(c)(1)(B).
The First Step Act is one of the statutes that expressly permits modifications
in some circumstances of sentences that were imposed for crack cocaine
convictions before the Fair Sentencing Act was enacted. See Jones, 962 F.3d at
1297. Section 404(b) of the Act authorizes a district court to reduce a defendant’s
sentence for a “covered offense” and to do so only “as if sections 2 and 3 of the
Fair Sentencing Act of 2010. . . were in effect at the time the covered offense was
committed.” First Step Act § 404(b). A “covered offense” is “a violation of a
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Federal criminal statute, 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 issue in this case is whether the crimes that Lesly and Guerly Alexis
committed are “covered offense[s].” Our binding precedent holds that they are.
See United States v. Taylor, 982 F.3d 1295 (11th Cir. 2020). In Taylor, we held
that a defendant whose “offense was conspiring to possess with intent to distribute
at least 5 kilograms of powder cocaine and at least 50 grams of crack cocaine” had
committed a “covered offense.” Id. at 1301. That was so because even if the
powder cocaine quantity element of the offense would trigger the same statutory
penalty after the Fair Sentencing Act, the crack cocaine quantity element would
trigger a different statutory penalty after the Act than it did before. Id. Because
that is the same situation that Lesly and Guerly are in, under Taylor they each
committed a “covered offense.”
That does not, however, end our inquiry. The “as if” clause in § 404(b) of
the Act allows a district court to reduce a sentence “as if sections 2 and 3 of the
Fair Sentencing Act . . . were in effect at the time the covered offense was
committed.” First Step Act § 404(b). We reiterated in the Taylor decision that the
“as if” limitation means a “movant who was sentenced to the lowest statutory
penalty available to him under the Fair Sentencing Act cannot receive any further
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reduction in his sentence under the First Step Act.” Id. at 1301–02 (citing Jones,
962 F.3d at 1303–04). Because that was not the circumstance of the defendant in
Taylor, the “as if” limitation did not forbid a sentence reduction for that defendant,
even though he had been found accountable at sentencing for 1.5 kilograms of
crack cocaine. The same is true here. Neither Lesly nor Guerly was sentenced to
the lowest possible statutory minimum available under the Fair Sentencing Act, so,
just as in Taylor, the “as if” limitation does not forbid a sentence reduction under
the First Step Act.
Since the Taylor decision was issued, which came after the district court’s
denial and after initial briefing in this appeal, the government has filed a letter of
supplemental authority conceding that point. It now agrees that the district court
erred in finding Lesly and Guerly ineligible for a First Step Act sentence reduction
based on the “covered offense” requirement and the “as if” limitation.
Still, the government argues that Guerly is nonetheless ineligible for a
sentence reduction under the First Step Act. It points out that he was sentenced on
August 24, 2010, which was after the Fair Sentencing Act was enacted on August
3, 2010. That matters, the government explains, because § 404(c) of the First Step
Act provides that “[n]o court shall entertain a motion made under this section to
reduce a sentence if the sentence was previously imposed . . . in accordance with
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the amendments made by sections 2 and 3 of the Fair Sentencing Act.” First Step
Act § 404(c).
Guerly’s sentence was imposed after the Fair Sentencing Act went into
effect, and nothing indicates that his sentence was somehow not imposed “in
accordance with” that Act. Therefore, the plain language of § 404(c) makes
Guerly ineligible for a sentence reduction. The district court lacked authority to
provide what the statute barred: a sentence reduction for him.
The same cannot be said for Lesly, however, who was sentenced before the
Fair Sentencing Act became law and thus was outside the scope of the § 404(c)
bar. Lesly is eligible for a sentence reduction, so “the district court was
authorized — but not required — to reduce” his sentence. Taylor, 982 F.3d at
1302.
For these reasons, we AFFIRM the district court’s denial of Guerly’s
motion for a sentence reduction under the First Step Act, but we VACATE its
denial of Lesly’s motion for a sentence reduction under that Act and REMAND
Lesly’s case for further proceedings consistent with this opinion.
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