United States v. Thomas ( 2022 )

20-3357-cr
United States v. Thomas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 4th day of March, two thousand twenty-two.
PRESENT:
DENNIS JACOBS,
REENA RAGGI,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. 20-3357
Gregory Thomas, AKA Little Earl, E-Z, William
Robinson, AKA Gugu, AKA Googs, AKA
Google,
Defendants-Appellants,
Billy J. Applins, AKA Gee, AKA Billy Pringle,
James Kelly, AKA Boom, Nathan Speights, AKA
The Mole, Dennis Jones, AKA Denny Man, AKA
Crazy D, AKA JJ, Ismail Pierce, AKA Bird,
AKA Rocket, AKA Holiday, AKA Styles, AKA
Streets, Jerrawn Thomas, AKA Piper, AKA
Jerrod, Ronnie Parnell, AKA Slick, Joseph
Derby, AKA Bird, AKA Dirt, Charmish
Singletary, AKA Meechie, AKA Sly, Lonnie
Singletary, AKA LA, Gregory Griffin, AKA
Meeshack, Andre Applins, AKA AJ, Tyler
Willis, AKA Trouble T, Skyler Willis, AKA Sky,
Defendants.
___________________________________
FOR DEFENDANT-APPELLANT
GREGORY THOMAS: Gregory Thomas, pro se, Ray Brook, NY.
FOR APPELLEE: Nicolas Commandeur, Paul D. Silver,
Assistant United States Attorney, of
Counsel, for Antoinette T. Bacon, Acting
United States Attorney for the Northern
District of New York, Albany, NY.
Appeal from an order of the United States District Court for the Northern District of New
York (Norman A. Mordue, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the September 24, 2020 order of the district court is AFFIRMED.
Pro se defendant-appellant Gregory Thomas stands convicted after trial of racketeering
conspiracy involving 50 grams or more of crack cocaine. See 18 U.S.C. § 1962(d). He here
appeals from the denial of his most recent motion for a sentence reduction under 18 U.S.C.
§§ 3582(c)(1)(B) and (c)(2). 1 Reviewing Thomas’s submissions liberally in light of his pro se
status, we understand him to argue that his 235-month sentence—which reflects two earlier
1
Although Thomas invoked only § 3582(c)(2) to support his motion, it appears he seeks relief
under § 3582(c)(1)(B), which permits a court to “modify an imposed term of imprisonment to the
extent otherwise expressly permitted by statute.” In this case, the operative statute is the First
Step Act, Pub. L. No. 115-391, 132 Stat. 5194, 5222. See United States v. Holloway, 956 F.3d
660, 665–66 (2d Cir. 2020) (“A First Step Act motion, however, is not properly evaluated under
18 U.S.C. § 3582(c)(2). That provision applies only if the defendant seeks a reduction because
he was sentenced ‘to a term of imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o),’ i.e., a change to
the Sentencing Guidelines. But a First Step Act motion is based on the Act’s own explicit
statutory authorization, rather than on any action of the Sentencing Commission. For this
reason, such a motion falls within the scope of § 3582(c)(1)(B) . . . .” (internal citations and
footnote omitted)).
2
sentencing reductions from his original 360-month sentence—must be reduced yet again in light
of the Fair Sentencing Act of 2010, see Pub. L. No. 111-220, 124 Stat. 2372, the First Step Act of
2018, see Pub. L. No. 115-391, 132 Stat. 5194, 5222, as well as various amendments to the
Sentencing Guidelines. We “review the denial of a motion for a discretionary sentence reduction
for abuse of discretion,” except where a decision is premised “entirely on statutory interpretation,”
in which case our review is de novo. United States v. Holloway, 956 F.3d 600, 664 (2d Cir. 2020).
We will identify abuse of discretion only if a ruling is based “on an erroneous view of the law or
on a clearly erroneous assessment of the evidence,” or “cannot be located within the range of
permissible decisions.” United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009) (internal
quotation marks omitted). In applying these standards here, we assume the parties’ familiarity
with the underlying facts and procedural history of the case, which we reference only as necessary
to explain our decision to affirm.
1. Sentencing History.
Thomas and four co-defendants were convicted after trial of participating in a violent
racketeering enterprise known as the “Elk Block gang,” which the jury expressly found to have
trafficked in 50 or more grams of crack cocaine. 2 At the time of Thomas’s conviction, trafficking
in that drug amount was punishable by a term of 10-years-to-life imprisonment under 21 U.S.C.
§ 841(b)(1)(A)(iii) (2006). The jury’s quantity finding thus had the effect of raising defendant’s
statutory sentencing range for the racketeering crime of conviction from a term of zero-to-twenty
years to zero-to-life. See 18 U.S.C. § 1963(a). 3 Accordingly, the district court initially sentenced
Thomas to 360 months’ incarceration, the low end of the 360-month-to-life advisory Guidelines
range for a defendant, such as Thomas, who had a total offense level of 40 and a criminal history
2
Co-defendant William Robinson was also an appellant in this case, but because he withdrew his
appeal after oral argument to this court, his sentencing challenges are no longer before this court.
3
This statute states in relevant part as follows: “Whoever violates any provision of section 1962
of this chapter shall be . . . imprisoned not more than 20 years (or for life if the violation is based
on a racketeering activity for which the maximum penalty includes life imprisonment) . . . .” 18
U.S.C. § 1963(a) (emphasis added).
3
category of V. 4 Since then, Thomas has repeatedly sought, and on two occasions obtained,
sentence reductions totaling approximately 10 years.
First, in 2011, on remand from this court, see United States v. Applins, 637 F.3d 59, 62 (2d
Cir. 2011), the district court reduced Thomas’s prison sentence to a term of 292 months. 5 In doing
so, it gave Thomas the benefit of Sentencing Guidelines Amendment 713 and proposed
Amendment 750, each of which afforded a 2-level reduction in the base offense levels for crack
offenses. See U.S.S.G. supp. to app. C, amend. 713 (2008); U.S.S.G. app. C vol. III, amend. 750
(2011). Amendment 750 was promulgated in response to Congress’s 2010 enactment of the Fair
Sentencing Act, Section 2 of which increased the quantity of crack necessary to trigger a 10-year-
to-life statutory sentencing range from 50 to 280 grams. See Fair Sentencing Act § 2(a)(1), 124
Stat. 2372. Thereafter, trafficking in 50 or more—but less than 280—grams of crack became
punishable under 21 U.S.C. § 841(b)(1)(B)(iii) by a term of 5-to-40 years. Congress did not
immediately make these statutory changes applicable retroactively. Nevertheless, because it was
anticipated that Amendment 750 would operate retroactively, the district court gave Thomas the
benefit of its additional 2-level offense reduction, recalculating his Sentencing Guidelines range
at 292-to-365 months and sentencing him to the low end of that range.
In appealing his reduced sentence as procedurally and substantively unreasonable, Thomas
did not argue any Fair Sentencing Act error. Rejecting Thomas’s arguments on the merits, this
court summarily affirmed his 292-month sentence. United States v. Thomas, 495 F. App’x 169
(2d Cir. 2012).
Second, in 2014, Thomas, proceeding pro se, moved for a further sentence reduction
4
The offense level of 40 was based on the district court’s preponderance finding that Thomas
could have foreseen the enterprise’s trafficking in at least 1.5 kilograms of crack. The district
court permissibly relied on that quantity in calculating Thomas’s Sentencing Guidelines range
because it (1) did not sentence Thomas in excess of the statutory sentencing maximum (here, life)
then supported by the jury’s quantity finding; and (2) recognized that the Guidelines sentencing
range was, in any event, advisory and not mandatory. See Apprendi v. New Jersey, 530 U.S. 466(2000).
5
Remand was ordered so that the district court could consider, consistent with the Supreme
Court’s decision in Kimbrough v. United States, 552 U.S. 85 (2007), whether the disparity between
the Guidelines’ treatment of crack- and powder-cocaine warranted a below-Guidelines sentence.
4
pursuant to 18 U.S.C. § 3582(c)(2). Invoking Amendment 750, Thomas argued that because the
jury’s 50-gram crack finding no longer supported a life sentence under the (still-not-retroactive)
Fair Sentencing Act, his racketeering crime did not warrant a sentence in excess of 20 years. The
district court denied the motion, observing that it had already given Thomas the benefit of the 292-
to-365-month Guidelines range dictated by Amendment 750, and that this court had affirmed the
amended 292-month judgment. Thomas did not appeal this ruling.
Third, Thomas filed a second pro se § 3582(c)(2) motion in 2017, this time seeking a
sentencing reduction based on, among other things, 2014 Guidelines Amendments 782 and 788,
which effected a retroactive, across-the-board two-level offense reduction for all drug types and
quantities. The district court granted this motion, recalculating Thomas’s total offense level at 34
and sentencing him to 235 months’ incarceration, the low end of his revised 235-to-293-month
Guidelines range.
Fourth, in July 2019, Thomas—this time with the assistance of counsel—filed a third
motion seeking a reduction of sentence based on Congress’s 2018 enactment of the First Step Act,
see Pub. L. No. 115-391, 132 Stat. 5194, 5222; see also 18 U.S.C. § 3582(c)(1)(B). That statute
effectively made relevant parts of the Fair Sentencing Act retroactive: “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 of 2010 . . . were in effect at the time the covered offense was committed.” First
Step Act § 404(b), 132 Stat. at 5222. The authority to grant such retroactive relief, however, is
discretionary and subject to certain express limitations:
No court shall entertain a motion made under this section to reduce
a sentence if the sentence was previously imposed or previously
reduced in accordance with sections 2 and 3 of the Fair Sentencing
Act of 2010 . . . or if a previous motion made under this section to
reduce the sentence was, after the date of enactment of this Act,
denied after a complete review of the motion on the merits.
Id. § 404(c), 132 Stat. at 5222.
In denying Thomas a further sentence reduction, the district court found it unnecessary to
decide whether Thomas’s racketeering conviction was for “a covered offense.” Instead, the
district court ruled that Thomas was, in any event, “not entitled to relief under the First Step Act
because he has already received the sentencing benefits provided therein.” Gov’t App’x at 202.
5
Alternatively the district court stated that it would not, in any event, exercise its discretion to reduce
Thomas’s sentence because “after careful review of the circumstances of his conviction and the
evidence presented at trial,” Thomas’s “sentence of 235 months remains appropriate under 18
U.S.C. § 1963(a) and 18 U.S.C. § 3553(a).” Id.In affirming, this court also did not decide “whether Thomas was convicted of a ‘covered
offense.’” United States v. Thomas, 827 F. App’x 63, 66 (2d Cir. 2020). Nor did we decide
whether the district court erred in concluding that Thomas had already “received the benefits of
the First Step Act.” Id. Instead, we affirmed because, even if these issues were resolved in
Thomas’s favor, we identified no clear error or abuse of discretion in the district court’s alternative
discretionary decision to deny Thomas a sentence reduction. See id.Fifth, on September 21, 2020, Thomas filed the pro se motion at issue on this appeal, again
urging a sentence reduction under the First Step Act. In a text order entered sua sponte on
September 24, 2020, the district court characterized the motion as “duplicative” of Thomas’s prior
motions and denied relief “for the reasons explained in [its previous] decision.” Gov’t App’x at
84. Thomas timely filed this appeal.
2. Merits.
Thomas argues that the district court erred in failing to grant his most recent motion for a
sentence reduction because (1) he was “wrongly sentenced to a mandatory minimum sentence
under a now-defunct statute,” App’t Br. at 6; and (2) the district court, in resentencing him to 235
months, “did not account for” the fact that his 235-to-293-month Guidelines range exceeded the
240-month maximum established by the Fair Sentencing Act, id. at 4. The argument fails for
several reasons.
First, Thomas was never sentenced to a mandatory minimum sentence. In so arguing,
Thomas may be confusing the penalties prescribed for crack trafficking in violation of 21 U.S.C.
§ 841 with those prescribed for racketeering. Before the Fair Sentencing Act, 21 U.S.C.
§ 841(b)(1)(A)(iii) provided a 10-year mandatory minimum and a lifetime maximum sentencing
range for persons convicted of trafficking 50 or more grams of crack in violation of § 841(a).
After the Fair Sentencing Act, trafficking that quantity of crack triggered a 5-year mandatory
minimum and a 40-year maximum. See id. § 841(b)(1)(B)(iii). But only these Title 21
6
maximum sentences—not their minimums—were pertinent to identifying the sentencing range for
a racketeering offense under 18 U.S.C. § 1963(a). Thus, because Thomas’s racketeering was
based on activity—trafficking in 50 grams or more of crack—that, at the time of conviction, carried
a maximum penalty of life, his racketeering sentencing range was raised from zero to twenty years
to zero to life. In sum, no mandatory minimum error supports Thomas’s latest motion for a
sentence reduction.
Second, Thomas is correct that a statutory maximum sentence necessarily sets an upper
limit on any Guidelines Sentencing range. Thus, insofar as Thomas’s most recently calculated
Guidelines range is 235-to-292 months, if, as he maintains, his racketeering crime of conviction is
a “covered offense” under the Fair Sentencing Act for which that law reduces the statutory
maximum from life to 20 years’ incarceration, that 20-year maximum would effectively narrow
his Guidelines range to 235-to-240 months. See United States v. Bennett, 839 F.3d 153, 162 (2d
Cir. 2016); U.S.S.G. §5G1.1. As on Thomas’s last appeal, we need not conclusively decide the
covered-offense question because, even assuming its resolution in Thomas’s favor, we would
identify no error warranting resentencing. Section 404(c) of the First Step Act “precludes review
of a motion to reduce a sentence if the sentence already conforms with the Fair Sentencing Act, or
if a reduction under the First Step Act was previously denied.” United States v. Moyhernandez,
5 F.4th 195, 199–200 (2d Cir. 2021); see also First Step Act § 404(c), 132 Stat. at 5222. As
discussed above, the district court denied Thomas’s 2019 First Step Act motion and we affirmed.
Our review of Thomas’s most recent motion is therefore barred by § 404(c). 6
The court has considered Thomas’s remaining arguments and concludes that they all are
without merit. Accordingly, the September 24, 2020 order of the district court is AFFIRMED.
6
The government argues that this conclusion is also compelled by the law-of-the-case doctrine.
See United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002) (stating that doctrine “ordinarily
forecloses relitigation of issues expressly or impliedly decided by the appellate court” (internal
quotation marks omitted)); accord United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009) (applying
doctrine to appeal from resentencing). We need not decide the question because even if that
doctrine or § 404(c) did not apply, on this panel’s own review of the record of proceedings in the
district court, we would identify no abuse of discretion in the district court’s decision not to reduce
Thomas’s sentence below 235 months.
7
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
8