USA v. Pallis Weaver

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13137
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PALLIS WEAVER,
a.k.a. Red,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:10-cr-00022-RH-WCS-1
____________________
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2 Opinion of the Court 21-13137
Before J ILL PRYOR , BRANCH, and L UCK , Circuit Judges.
PER C URIAM :
Pallis Weaver appeals the district court’s order denying his
renewed motion for a sentence reduction under section 404 of the
First Step Act. The government has moved for summary affir-
mance because Weaver was sentenced under—and already re-
ceived the benefit of—the Fair Sentencing Act so he was not enti-
tled to First Step Act relief. Because the government is clearly right
as a matter of law, we grant the summary affirmance motion and
affirm the district court’s order.1
I
In 2010, Weaver pleaded guilty to: (1) conspiring to distrib-
ute and possess with the intent to distribute more than five kilo-
grams of powder cocaine and more than fifty grams of crack co-
caine, in violation of 21 U.S.C. sections 841(a)(1), 841(b)(1)(A)(ii),
841(b)(1)(A)(iii), and 846 (count one); (2) distributing crack cocaine,
in violation of 21 U.S.C. sections 841(a)(1) and 841(b)(1)(C) (count
four); and (3) possessing with the intent to distribute powder co-
caine and more than five grams of crack cocaine, in violation of 21
U.S.C. sections 841(a)(1), 841(b)(1)(B)(iii), and 841(b)(1)(C) (count
five). The plea agreement explained that Weaver faced a statutory
mandatory term of life imprisonment for count one, a maximum
1 We also GRANT Weaver’s motion to file a supplemental brief.
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21-13137 Opinion of the Court 3
term of thirty years’ imprisonment for count four, and a mandatory
minimum term of ten years’ imprisonment and a maximum of life
imprisonment for count five.
The probation office prepared a presentence report. The
presentence report noted that the Fair Sentencing Act applied to
Weaver and the Act’s changes to the maximum and minimum sen-
tences and the guideline ranges were reflected in the report. Still,
even with the changes in the Fair Sentencing Act, Weaver’s guide-
line range was life imprisonment. Weaver didn’t object to the
presentence report.
The district court adopted the presentence report’s guide-
line calculation and sentenced Weaver to life imprisonment on
count one and thirty years’ imprisonment on counts four and five,
all to run concurrently with each other. In its statement of reasons,
the district court explained that it adopted the presentence report
in full and sentenced Weaver to the statutory mandatory minimum
term of life imprisonment. Weaver didn’t appeal.
But, in 2019, he moved for a sentence reduction under the
First Step Act, arguing that he was “eligible for the Fair Sentencing
Act 2010 crack cocaine sentencing reforms.” The district court de-
nied Weaver’s motion partly because he had already been sen-
tenced under the Fair Sentencing Act. The First Step Act, the dis-
trict court determined, didn’t authorize a further reduction be-
cause Weaver had not been sentenced based on pre-Fair Sentenc-
ing Act drug quantities.
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4 Opinion of the Court 21-13137
In 2021, Weaver filed another motion to reduce his sentence
under the First Step Act, arguing that he deserved a sentence re-
duction because he wouldn’t face a mandatory minimum life sen-
tence if sentenced today, he rehabilitated himself in prison, and he
didn’t pose a danger to the community. The district court denied
the renewed motion because, again, “Weaver was sentenced ‘as if’
the Fair Sentencing Act’s drug-quantity changes were in effect
when he committed the offenses” and because count one involved
enough powder cocaine to require a life sentence “without regard
to any crack involved in the offense.”
II
“We review de novo . . . whether a district court had the au-
thority to modify a term of imprisonment.”
United States v. Jones,
962 F.3d 1290, 1296 (11th Cir. 2020) (emphasis and citation omit-
ted). 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 substantial question as to the outcome of the case.”
Groen-
dyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
III
Weaver raises three arguments on appeal.2 First, he con-
tends that the district court didn’t explain why it wouldn’t reduce
2 Weaver lists six arguments in the “summary of the argument” section of his
brief. But he forfeits the arguments that he doesn’t support in the rest of the
brief.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.
2014) (explaining that an appellant forfeits “a claim or issue . . . when the
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21-13137 Opinion of the Court 5
his sentence and thus didn’t show it understood it had the authority
to reduce his sentence. The district court should have reduced
Weaver’s sentence, he claims, because “he is not already serving
the lowest statutory penalty that would have been available to
him.” Weaver notes that he wouldn’t face a mandatory sentence
of life imprisonment if sentenced under the current version of the
First Step Act. Second, Weaver argues that the district court didn’t
consider the relevant factors under 18 U.S.C. section 3553(a), in-
cluding that in denying his motion, the district court created an un-
warranted disparity between his sentence and the sentences of
“similarly situated offenders today.” Third, Weaver maintains that
the district court erred in failing to provide an “individualized ex-
planation” for why his postsentence rehabilitation efforts didn’t
merit a reduced sentence. He asserts that the First Step Act and the
section 3553(a) sentencing factors now allow a district court to re-
duce a sentence based on rehabilitation.
The government moves for summary affirmance because
“the district court properly denied Weaver a sentence reduction
under the First Step Act.” “[T]he district court sentenced Weaver
as if the Fair Sentence Act was in effect when his offense was com-
mitted,” and “the First Step Act’s ‘as if’ requirement precluded a
passing references to it are made in the . . . ‘summary of the argument’”).
“While we read briefs filed by pro se litigants liberally,” a pro se litigant still
forfeits “issues not briefed on appeal.”
Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (emphasis omitted).
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6 Opinion of the Court 21-13137
sentence reduction.” The government is clearly right as a matter
of law.3
“[T]he First Step Act expressly permits district courts to re-
duce a previously imposed term of imprisonment.”
United States
v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020). “The First Step Act
permits a district court that imposed a sentence for a covered of-
fense to impose a reduced sentence as if sections [two] and [three]
of the Fair Sentencing Act were in effect at the time the covered
offense was committed.”
Id. (cleaned up). But a “district court may
not entertain a motion from a defendant who already benefitted
from the Fair Sentencing Act by having his sentence imposed or
reduced in accordance with sections two or three of the Fair Sen-
tencing Act.”
Id. (quotations omitted). Because Weaver already
benefitted from the Act when the district court imposed his sen-
tence, the district court lacked the authority to reduce his sentence
further.
See id.
Although “the First Step Act allows district courts to con-
sider intervening changes of law or fact in exercising their discre-
tion to reduce a sentence pursuant to the First Step Act,”
3 The government also argues for summary affirmance because Weaver’s mo-
tion was barred as second or successive. Weaver, in his supplemental brief,
responds that we shouldn’t decide whether his 2021 motion was second or
successive. Because the government is clearly right that Weaver is not entitled
to First Step Act relief because he was already sentenced under the Fair Sen-
tencing Act, we don’t have to decide whether his motion was a second or suc-
cessive one. So we don’t.
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21-13137 Opinion of the Court 7
Concepcion v. United States, 142 S. Ct. 2389, 2404 (2022), the dis-
trict court had no discretion to reduce Weaver’s sentence because
Weaver had already been sentenced as if the Fair Sentencing Act
were in effect.
See id. at 2401–02 (“A district court may not con-
sider a First Step Act motion if the movant’s sentence was already
reduced under the Fair Sentencing Act . . . .”). The district court
showed it understood it lacked the authority to reduce Weaver’s
sentence when, in denying his motion, it explained that “Weaver
was sentenced ‘as if’ the Fair Sentencing Act’s drug-quantity
changes were in effect when he committed the offenses.” Because
the district court lacked the authority to reduce Weaver’s sentence,
it didn’t have to consider the section 3553(a) factors or Weaver’s
rehabilitation.
And because the government is clearly right as a matter of
law that Weaver was not entitled to a sentence reduction under
section 404 of the First Step Act, we GRANT its motion for sum-
mary affirmance and AFFIRM the district court’s order denying
Weaver’s motion for a sentence reduction.4
4 We DENY as moot the government’s motion to stay the briefing schedule.
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