USCA11 Case: 19-13056 Date Filed: 04/19/2022 Page: 1 of 9
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13056
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYDEARAIN SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:07-cr-00025-JDW-AAS-1
____________________
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2 Opinion of the Court 19-13056
Before WILLIAM PRYOR, Chief Judge, JORDAN, Circuit Judge, and
BROWN,* District Judge.
JORDAN, Circuit Judge:
This case concerns the process to which a defendant is enti-
tled when he seeks relief under the First Step Act of 2018, Pub. L.
No. 115-391, § 404(b),
132 Stat. 5194.
I
In 2007, Tydearain Smith was convicted of possession of 5
grams or more of crack cocaine with intent to distribute in viola-
tion of
21 U.S.C. § 841(b)(1)(B), and the brandishing of a firearm in
the commission of a drug trafficking crime in violation of
18 U.S.C.
§ 924(c)(1)(A)(ii). The district court sentenced him to a term of 210
months of imprisonment on the crack cocaine conviction, and a
consecutive term of 84 months of imprisonment on the firearm
conviction. Based on Amendments 706 and 782 to the Sentencing
Guidelines, the district court subsequently reduced Mr. Smith’s
sentence on the crack cocaine conviction, first to 168 months of
imprisonment, and then to 135 months of imprisonment.
Mr. Smith wrote a letter to the district court in 2019 asking
whether he was eligible for a sentence reduction under the First
Step Act, and requesting the appointment of counsel to file a mo-
tion under the Act. The letter contained no substantive arguments
* Honorable Michael L. Brown, United States District Judge for the Northern
District of Georgia, sitting by designation.
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19-13056 Opinion of the Court 3
on eligibility. Nor did it set out the grounds supporting a reduc-
tion.
The district court appointed the Federal Public Defender’s
Office to represent Mr. Smith. As part of the standard procedure
in the Middle District of Florida, the probation office prepared a
memorandum advising the court that Mr. Smith was ineligible for
a sentence reduction under the First Step Act. The Federal Public
Defender’s Office subsequently entered an appearance as counsel
of record for Mr. Smith.
In an order issued before we decided United States v. Jones,
962 F.3d 1290, 1298–1300 (11th Cir. 2020) (addressing the meaning
of the term “covered offense” in § 404 of the First Step Act), the
district court construed Mr. Smith’s pro se letter as a motion re-
questing a reduction under the Act. Without receiving briefing
from the parties, the court denied the construed motion as moot,
concluding that Mr. Smith was not eligible for a reduction under
the Act.
Mr. Smith filed a pro se motion for reconsideration. Federal
Public Defender’s Office also filed a motion for reconsideration, ar-
guing that Mr. Smith was eligible for relief under the First Step Act
because (a) the statute of conviction—as opposed to his actual con-
duct and possible penalties—dictated whether he was eligible for a
reduction, and (b) the penalties for his statute of conviction had
changed.
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4 Opinion of the Court 19-13056
The district court ordered the government to respond to Mr.
Smith’s motions for reconsideration, “including all substantive ar-
guments.” The parties then filed a joint motion for reconsideration
requesting a briefing schedule to allow litigation over Mr. Smith’s
eligibility for a sentence reduction and all other “substantive legal
and factual arguments for relief.” The court denied the motion and
ordered the government to respond as originally directed.
In its response, the government argued that Mr. Smith was
ineligible for relief under the First Step Act for the reasons stated
by the probation office. Mr. Smith, through counsel, requested
leave to reply to the government’s response so that he could pre-
sent factual and legal arguments to support his request for relief.1
The district court denied Mr. Smith’s pro se and counseled
motions for reconsideration and for leave to file a reply. It again
concluded that Mr. Smith was ineligible for relief under the First
Step Act because the penalties he faced for the drug quantity estab-
lished in the presentence investigation report had not changed.
The court alternatively ruled that, even if Mr. Smith were eligible
for relief, a “further reduction [was] not warranted” because he
1Mr. Smith also mailed a pro se letter to the district court. He asserted that
he was a “changed man” and a “model inmate” who had improved himself
during his incarceration and set out his strong desire to be with his family.
Under the Middle District’s local rules, this communication was improper be-
cause a represented person “can appear through the lawyer only.” M.D. Fla.
R. 2.02(b)(3).
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19-13056 Opinion of the Court 5
perjured himself at trial, brandished a firearm during his crime, stip-
ulated that the cocaine base he possessed was 94% pure, and had
already benefitted from two sentence reductions by virtue of retro-
active amendments to the sentencing guidelines.
This appeal followed. Following a review of the record, and
with the benefit of oral argument, we reverse and remand because
Mr. Smith was not provided an opportunity to be heard as to why
he merited a sentence reduction.
II
The first question is whether Mr. Smith is eligible for a sen-
tence reduction under the First Step Act. Exercising plenary re-
view, see Jones, 962 F.3d at 1296, we agree with the parties that Mr.
Smith is eligible.
Mr. Smith was convicted of possessing 5 grams or more of
crack cocaine with the intent to distribute. At the time he was sen-
tenced, the statutory penalty for this offense was 5 to 40 years of
imprisonment. See Terry v. United States,
141 S. Ct. 1858, 1862
(2021) (describing the pre-2010 sentencing scheme for crack co-
caine offenses under
21 U.S.C. § 841). Because Mr. Smith had an
enhancement under
21 U.S.C. § 851, his statutory penalty increased
to 10 years to life imprisonment.
Under the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
§ 2,
124 Stat. 2372—made retroactive by the First Step Act—a nar-
cotics offense involving less than 28 grams of crack cocaine now
carries a statutory penalty of up to 20 years with no mandatory
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6 Opinion of the Court 19-13056
minimum. With an § 851 enhancement, such an offense carries a
maximum sentence of 30 years, again with no mandatory mini-
mum. See Fair Sentencing Act, § 2. Because Mr. Smith’s statutory
penalty for his crack cocaine offense has been modified by the ret-
roactive application of the Fair Sentencing Act, his conviction is a
“covered offense” under § 404(a) of the First Step Act and he is eli-
gible for a reduction under § 404(b). See Terry, 141 U.S. at 1862;
Jones, 962 F.3d at 1302–03.2
The second question is whether the district court erred in
alternatively denying relief to Mr. Smith under the First Step Act.
We review a decision to deny relief under the Act for abuse of dis-
cretion. See Jones, 962 F.3d at 1296. As we have explained in sev-
eral cases, a “district court’s alternative exercise of discretion in
denying a First Step Act motion can suffice for affirmance.” United
States v. Gonzalez,
9 F.4th 1327, 1332 (11th Cir. 2021). See also
United States v. Potts,
997 F.3d 1142, 1145–46 (11th Cir. 2021). Un-
der the circumstances presented here, however, the alternative de-
nial cannot stand.
“‘[A] defendant can file only one motion for resentencing”
under the First Step Act, and a second motion is barred “if the first
was denied after a complete review . . . on the merits.” United
States v. Denson,
963 F.3d 1080, 1087 (11th Cir. 2020) (internal
2 As noted earlier, the district court did not have the benefit of our decision in
Jones when it ruled that Mr. Smith was not eligible for relief under the First
Step Act.
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19-13056 Opinion of the Court 7
quotation marks and citation omitted, and emphasis removed). As
noted, the district court construed Mr. Smith’s pro se motion for
appointment of counsel—which contained no arguments about el-
igibility and no reasons as to why a reduction would be appropri-
ate—as a motion for a sentence reduction under the First Step Act.
Assuming without deciding that it was correct to do so, cf. United
States v. Russell,
994 F.3d 1230, 1242–43 (11th Cir. 2021) (Branch,
J., concurring in the judgment) (asserting that the district court in
that case should not have construed the defendant’s motion for ap-
pointment of counsel as a motion for a sentence reduction under
the First Step Act), the court should not have rendered an alterna-
tive ruling on whether Mr. Smith merited a sentence reduction
without giving him an opportunity to be heard on the issue.
“[B]efore acting on its own initiative, a court must accord
the parties fair notice and an opportunity to present their posi-
tions.” Day v. McDonough,
547 U.S. 198, 210 (2006). We have said
that the complete denial of the opportunity to be heard on a mate-
rial issue is a violation “of due process which is never harmless er-
ror,” Republic Nat’l Bank of Dallas v. Crippen,
224 F.2d 565, 566
(5th Cir. 1955), and have reversed district court orders and judg-
ments in a variety of settings when such an opportunity was not
provided. See, e.g., McIntosh v. Royal Caribbean Cruises, Ltd.,
5
F.4th 1309, 1312 (11th Cir. 2021); S.E.C. v. Torchia,
922 F.3d 1307,
1318–19 (11th Cir. 2019); United States v. Shaygan,
652 F.3d 1297,
1317–18 (11th Cir. 2011); Parker v. Williams,
862 F.2d 1471, 1474–
75, 1481–82 (11th Cir. 1989), overruled on other grounds by
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8 Opinion of the Court 19-13056
Turquitt v. Jefferson County,
137 F.3d 1285, 1292 (11th Cir. 1998)
(en banc); Council of Federated Organizations v. Mize,
339 F.2d
898, 900–01 (5th Cir. 1964).
Here, Mr. Smith did not have an opportunity to present ar-
guments in support of his request for a sentence reduction under
the First Step Act. The district court based its initial denial of the
construed motion on eligibility grounds, and when Mr. Smith
moved for reconsideration he understandably only addressed
whether he was eligible for relief. The court denied the parties’
joint request for a briefing schedule, and also denied Mr. Smith’s
request for leave to file a reply to the government’s submission. As
a result, when the court issued its alternative ruling that Mr. Smith
did not merit a reduction of his sentence it did so without hearing
from him. That was error.
The government argues that the district court “was not re-
quired to await further brief[ing] from [Mr.] Smith before ruling”
given the “sweeping discretion” afforded to it by Congress under
the First Step Act. See Appellee’s Br. at 26. We do not doubt the
discretion point, but we cannot agree with the government’s pro-
cedural assertion. Although the district court provided reasons as
to why Mr. Smith did not merit a sentence reduction, it rendered
its alternative ruling without hearing from him and without con-
sidering the factual and legal bases that might support a favorable
exercise of discretion. The wide berth given to district courts by
the First Step Act requires deferential review with respect to the
ultimate exercise of discretion, but it does not speak to the process
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19-13056 Opinion of the Court 9
which must be provided to the parties. As we have explained,
“[t]he denial of an opportunity to litigate can never be harmless er-
ror,” and “[a] party must have his day in court.” Parker,
862 F.2d
at 1481–82. See also McNabb v. Comm’r Ala. Dep’t of Corr.,
727
F.3d 1334, 1347 (11th Cir. 2013) (Jordan, J., concurring) (“Our cases
have long held that certain procedural due process violations, such
as the flat-out denial of the right to be heard on a material issue,
can never be harmless.”).
III
The district court should not have alternatively denied the
construed motion for a sentence reduction under the First Step Act
without giving Mr. Smith the opportunity to present his factual and
legal arguments in support of relief. We therefore reverse the
court’s order denying the construed motion and remand for further
proceedings consistent with our opinion.
REVERSED AND REMANDED.
