United States v. Kyle ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 12, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1109
(D.C. No. 1:07-CR-00183-REB-9)
BAYLIN KYLE, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
This matter is before us on Baylin Kyle’s appeal of the denial of his motion for
a reduction of his sentence, pursuant to the First Step Act of 2018 and 18 U.S.C.
§ 3582(c)(2). Also before us is a motion to withdraw filed by Kyle’s counsel,
accompanied by a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We
DISMISS Kyle’s appeal and GRANT counsel’s motion to withdraw.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Background
In 2007, Kyle pled guilty to, and was convicted of, three drug-trafficking and
firearm-related offenses. Specifically, Kyle was convicted of:
Count One: 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), 851 and
18 U.S.C. § 2, Conspiracy to Distribute and to Possess with
Intent to Distribute One or More of the Following: 5
Kilograms and [sic] More of Cocaine and 50 Grams and
[sic] More of Cocaine Base and Aiding and Abetting;
Count 2: 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 851 and 18
U.S.C. § 2, Distribution and Possession with Intent to
Distribute More than Fifty Grams of a Substance and [sic]
Mixture Containing a Detectable Amount of Cocaine Base,
“Crack Cocaine,” a Schedule II Controlled Substance, and
Aiding and Abetting; [and]
Count 6: 18 U.S.C. §§ 924(c)(1)(A) and (c)(2), Possession
of One or More Firearms in Furtherance of a Drug
Trafficking Crime.
See ROA, Vol. I at at 195–96.
The district court sentenced Kyle to two concurrent 240-month terms of
imprisonment on Counts 1 and 2; the district court also sentenced Kyle to a
consecutive 60-month term of imprisonment on Count 6, for a total operative
sentence of 300 months (25 years). Id. at 197. In doing so, the district court varied
downward from the Guidelines range of 324 to 405 months on Counts 1 and 2, which
was to be followed by a consecutive sentence of 60 months on Count 6. Id. at 204;
see also id. at 315–16 & n. 7. Kyle’s sentence reflected the statutory mandatory
minimums at the time.
2
In 2019, Kyle moved for a reduced sentence pursuant to the First Step Act.
The government opposed Kyle’s motion, asserting that “[Kyle] is not eligible for
relief pursuant to the First Step Act since his case does not involve a ‘covered
offense’ within the meaning of the Act.” Id. at 226.1 In support of its position, the
government looked beyond the charges underlying Kyle’s plea to the factual
admissions contained in his plea agreement. Kyle admitted in the plea agreement
that the conspiracy at issue involved the possession and distribution of more than 5
kilograms of cocaine. Id. at 163. Thus, the government argued, even if the Fair
Sentencing Act had been in effect at the time of Kyle’s trial, as contemplated by the
First Step Act, he still would have received a 240-month sentence because he
admitted responsibility for more than 280 grams of cocaine base. The government
also asserted that, even if Kyle were eligible for relief, a different sentence was
unwarranted.
The district court denied Kyle’s motion. In doing so, the district court
observed that this Circuit had not yet addressed whether courts may look beyond the
1
Section 404(a) of the First Step Act defines a “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 of 2010 . . . that was committed
before August 3, 2010.” Pub. L. No. 115-391, 132 Stat. 5222 (2020).
Section 2 of the Fair Sentencing Act amended section 401(b)(1) of the
Controlled Substances Act, 21 U.S.C. § 841(b)(1), by “increas[ing] the drug amounts
triggering mandatory minimums for crack trafficking offenses from 5 grams to 28
grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect
to the 10-year minimum.” Dorsey v. United States, 567 U.S. 260, 269 (2012).
Section 3 of the Fair Sentencing Act “eliminated the 5-year mandatory minimum for
simple possession of crack.” Id.3
language of the indictment and consider offense conduct when determining whether a
conviction involved a “covered offense” under the First Step Act. Id. at 316–18. The
district court declined to resolve that question because it found that, even if Kyle
were eligible for relief, “it would not be appropriate to exercise [the district court’s]
sentencing discretion [to] provide Mr. Kyle a downward variance similar to that he
received at the time of sentencing.” Id. at 319. The district court went on to explain
that “[n]othing in the nature and circumstances of this offense or the history and
characteristics of Mr. Kyle warrants a lesser sentence than the mandatory minimum
he actually received.” Id. Kyle did not move for reconsideration. He then appealed
the district court’s ruling to this court.
On appeal, Kyle’s counsel moved to withdraw pursuant to Anders v.
California, asserting that there were no non-frivolous issues for appeal. Kyle
responded to his counsel’s Anders brief; the government agreed with Kyle’s counsel
and declined to file a response brief.
Discussion
An attorney may withdraw from a case on appeal when, after “conscientious
examination,” he or she has found an appeal to be “wholly frivolous.” Anders, 386
U.S. at 744. A motion to withdraw pursuant to Anders must be accompanied by a
brief referring to “anything in the record that could arguably support the appeal.” Id.The defendant-appellant must be provided a copy of the brief and allowed time to
respond. Id. “[T]he court . . . then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous.” Id. If the court
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determines that the appeal is frivolous, “it may grant counsel’s request to withdraw
and dismiss the appeal.” Id.Counsel asserts that any challenge to the district court’s assumption that Kyle
is eligible for First Step Act relief would be frivolous. We agree. The district court
assumed, arguendo, that Kyle was eligible for relief under the First Step Act.
Therefore, any error in assuming Kyle’s eligibility would have been indisputably
harmless, given that Kyle benefited from that assumption. See United States v. Ortiz,
611 F. App’x 504, 508 (10th Cir. 2015) (unpublished) (granting counsel’s motion to
withdraw where any sentencing error was harmless) (citing United States v.
Montgomery, 439 F.3d 1260, 1263 (10th Cir. 2006)).
Counsel also asserts that any challenge to the district court’s exercise of its
discretion to deny a sentence reduction would be frivolous. Again, we agree.
Section 404(b) of the First Step Act authorizes courts to “impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect
at the time the covered offense was committed.” Pub. L. No. 115-391, 132 Stat. 5222(2020). Section 404(c) further explains that “[n]othing in this section shall be
construed to require a court to reduce any sentence pursuant to this section.” Id.Additionally, because the First Step Act only allows for the modification of
sentences, and not plenary resentencing, we review “not the propriety of the sentence
itself, but the propriety of the district court’s grant or denial of the motion to reduce
the sentence.” United States v. Mannie, 971 F.3d 1145, 1155 (10th Cir. 2020). We
review that decision only for abuse of discretion. Id.; see also United States v.
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Brown, 974 F.3d 1137, 1142 (10th Cir. 2020) (holding that “the plain text of the
sentencing provisions gives the court discretion over whether to apply the Fair
Sentencing Act at all”). The First Step Act “does not provide guidance on what a
court should consider in exercising its discretion or the scope of its analysis in
exercising that discretion.” Brown, 974 F.3d at 1142. A district court must,
however, “set forth enough to satisfy the appellate court that [it] has considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” Mannie, 971 F.3d at 1157 (quoting Rita v. United States,
551 U.S. 338, 356 (2007)).
We detect no nonfrivolous basis for challenging the district court’s exercise of
its discretion. The district court denied Kyle’s motion after considering the § 3553(a)
sentencing factors. The district court found that those factors, on balance, did not
warrant a different sentence. Specifically, the district court found that Kyle was a
principal in a “wide-ranging drug trafficking conspiracy,” that Kyle possessed a
firearm during a controlled purchase, and that the conspiracy distributed more than
five kilograms of cocaine. ROA, Vol. I at 319–20. The district court also found that
Kyle’s criminal history showed “a nearly uninterrupted pattern of drug arrests and
convictions beginning at age 13.” Id. at 320. Accordingly, the district court clearly
“considered the parties’ arguments” and provided a “reasoned basis” for exercising
its discretion. Mannie, 971 F.3d at 1157.
In his response to his counsel’s motion to withdraw, Kyle asserts that the
district court erred when it concluded that Kyle had not taken steps to “prepare
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himself for a life outside of prison.” Aplt. Resp. Br. at 9 (citing ROA, Vol. I at 320).
Kyle asserts that he has completed nearly forty classes while imprisoned, including
“substance abuse focused classes” and a “financial responsibility plan.” Id. Yet this
argument, and the evidence Kyle submits with his response brief, was not presented
to the district court and is thus forfeited. Fogle v. Gonzales, 570 F. App’x 795, 797
(10th Cir. 2014) (unpublished) (declining to “entertain non-record evidence presented
for the first time on appeal”). Further, even considering Kyle’s new evidence, we
could not conclude the district court plainly erred or abused its discretion,
particularly in light of its discussion of other § 3553(a) factors which included Kyle’s
criminal history and the seriousness of his offenses.2
Kyle also alleges that there is an unwarranted disparity between his sentence
and the sentences of his codefendants. Aplt. Resp. Br. at 10. Kyle points specifically
to one codefendant—Courtney McCoy—who Kyle asserts has since been released.
This argument was also not presented to the district court and is thus forfeited.
Fogle, 570 F. App’x at 797. Further, Kyle provides no factual basis for his assertions
that McCoy received a lesser sentence or has been released.3 Finally, even if we
2
Kyle relies on Pepper v. United States, 562 U.S. 476, 490–93 (2011) for the
proposition that his postsentencing conduct is critical to determining his “history and
characteristics.” Aplt. Resp. Br. at 9. Pepper is inapposite because that case
addressed resentencing, not the modification or reduction of a sentence. See Dillon v.
United States, 560 U.S. 817, 826 (2010) (distinguishing modification of a term of
imprisonment from a “plenary resentencing proceeding”).
3
In fact, it appears that McCoy was similarly sentenced to a term of 240
months for his drug trafficking and conspiracy offenses. United States v. McCoy,
07-cr-172-CMA-19 (D. Colo. July 6, 2009), ECF No. 1503 at 3.
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were to credit Kyle’s factual assertions, we could not conclude that the district court
plainly erred or abused its discretion, particularly in light of its discussion of other
§ 3553(a) factors which included Kyle’s criminal history and the seriousness of his
offense.
Conclusion
Our independent review of counsel’s motion to withdraw, Kyle’s response
brief, and the record leads us to the conclusion that there are no nonfrivolous grounds
to support this appeal. We thus DISMISS Kyle’s appeal and GRANT counsel’s
motion to withdraw. We DENY as moot Kyle’s motion to withdraw his appeal and
any other pending motions.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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