United States v. Kerry Howard ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0227n.06
Case No. 20-5352
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 29, 2021
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
Plaintiff-Appellee,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE EASTERN
KERRY LAMONT HOWARD, DISTRICT OF KENTUCKY
Defendant-Appellant.
BEFORE: CLAY, SUTTON, and McKEAGUE, Circuit Judges.
CLAY, Circuit Judge. Defendant Kerry Lamont Howard appeals the district court’s
decision to resentence him to 262 months in prison for conspiring to distribute 12 grams of crack
cocaine. On appeal, Howard argues that he was improperly resentenced in violation of the First
Step Act, Pub. L. No. 115-391, § 404, 132 Stat. 5194 (2018). For the reasons set forth below, we
remand Howard’s case for resentencing.
I. BACKGROUND
A. Factual and Procedural History
In 2006, Kerry Lamont Howard pled guilty to conspiring to distribute five or more grams
of crack cocaine in violation of 21 U.S.C. § 841(a)(l). Because of his prior criminal history, and
the amount of crack associated with his conviction, he faced a mandatory minimum sentence of
10 years. Specifically, his guideline range recommended that the district court sentence him to
262-327 months of incarceration. The district court sentenced him to 262 months of incarceration
and 8 years of supervised release. Upon appeal, we affirmed his conviction. United States v.
Case No. 20-5352, United States v. Howard
Howard, 259 F. App’x 761 (6th Cir. 2008). Four years after his conviction, in 2010, Congress
passed the Fair Sentencing Act, which reduced the cocaine to crack cocaine disparity in federal
sentencing decisions. See Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372 (2010). In 2018, Congress
passed the First Step Act (FSA), which made the sentencing revisions in the Fair Sentencing Act
retroactive to defendants like Howard. See Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222
(2018).
On February 7, 2019, the district court sua sponte determined that Howard would not be
eligible for a sentence reduction because he was a career offender. On appeal, the federal
government conceded that the district court erred because we ruled in a separate case that the FSA
“contain[ed] no freestanding exception for career offenders.” United States v. Beamus, 943 F.3d
789, 791 (6th Cir. 2019) (per curiam). We subsequently remanded the case to the district court to
resentence Howard in accordance with the FSA. Three days after this court’s ruling, the district
court reimposed Howard’s original sentence of 262 months, stating:
In addition to the three convictions that led to his career offender status, the PSR
reflects multiple other drug-related contacts with the law (PSR ¶s 39-43). It also
reflects a limited employment history. Consequently, the Court concluded at the
time of Howard’s sentencing that if the earlier sentences of eight and ten years of
imprisonment were not enough to convince Howard to get out of the drug-dealing
business, a more substantial sentence of 262 months might. I see no reason to
change my mind. (ECF No. 169 at PageID # 502.)
This appeal followed.
II. DISCUSSION
A. Resentencing under the First Step Act
1. Standard of Review
We review “the denial of a motion for a sentence reduction under the First Step Act and
§ 3582(c) for an abuse of discretion.” United States v. Smith, 959 F.3d 701, 702 (6th Cir. 2020)
(order). “A district court abuses its discretion when it applies the incorrect legal standard,
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misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” Id. (quoting
United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009)). And we will only vacate the district
court’s decision if we are “firmly convinced that a mistake has been made.” Moore, 582 F.3d at
644 (quoting McCombs v. Meijer, Inc., 395 F.3d 346, 358 (6th Cir. 2005)).
2. Relevant Legal Principles
The Fair Sentencing Act, and the First Step Act’s retroactive application of the Fair
Sentencing Act, decreased the sentencing disparity between cocaine and crack cocaine offenses.
Pub L. No. 111-220, 124 Stat. 2372 (2010). Upon passage, these acts of Congress increased the
threshold quantities of crack cocaine necessary to trigger a higher penalty at a defendant’s
sentencing. Id. Prior to 2018, a defendant caught with 5 grams of crack cocaine faced penalties that
the relevant statute now penalizes for possession of 28 grams. See 21 U.S.C. § 841(b)(1)(B)(iii).
Because the FSA made relief retroactive, defendants convicted of certain drug crimes are now
eligible to apply for resentencing under the lowered guidelines. Pub. L. No. 115-391, § 404, 132
Stat. 5194 (2018). At a defendant’s resentencing, “the First Step Act contemplates a baseline of
process that must include an accurate amended guideline calculation and renewed consideration
of the 18 U.S.C. § 3553(a) factors.” United States v. Boulding, 960 F.3d 774, 784-85 (6th Cir.
2020). Accordingly, “the sentencing guidelines should be the starting point and the initial
benchmark for choosing a defendant’s sentence.” Smith, 959 F.3d at 703(quoting United States v.
Bistline, 665 F.3d 758, 761 (6th Cir. 2012)). A renewed consideration of the § 3553(a) factors
requires sentences to be “[no] greater than necessary.” Id. In its discretion, the district court may
depart from the amended guidelines calculation, but must have a “sufficiently compelling
justification” for an above-guidelines resentencing decision. Boulding, 960 F.3d at 783 (quoting
Smith, 959 F.3d at 703-04).
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3. Application to the Matter at Hand
In 2006, the federal government charged Howard with conspiring to distribute 12.24 grams
of crack cocaine, which upon conviction, triggered a mandatory minimum sentence of 10 years
and a guideline range of 262-327 months of incarceration. Howard pled guilty, and the district
court sentenced him to 262 months of incarceration and 8 years of supervised release. Upon the
FSA’s passage in 2018, Howard became eligible for renewed consideration of his prior sentence.
Had Howard been sentenced under the FSA’s revised guideline range, he would have faced a
sentence of 188-235 months and 6 years of supervised release. See U.S.S.G. § 4B1.1(b)(2); 21
U.S.C. § 841(b)(1)(C). Because Howard’s original guidelines range was dictated by the statutory
mandatory minimum sentence of life in prison, the FSA required a recalculation of an amended
guidelines range. See United States v. Maxwell, 991 F.3d 685, 690 (6th Cir. 2021). Despite his
lowered guideline range, the district court resentenced Howard to his original sentence of 262
months. In explaining its rationale, the district court cited Howard’s lack of employment prior to
incarceration and his status as a career offender, and stated that “I see no reason to change my
mind.” (ECF No. 169 at PageID # 502.)
Upon review, we find that the district court abused its discretion by not completing the
“renewed consideration of the 18 U.S.C. § 3553(a) factors” required under the FSA. Boulding, 960
F.3d at 785. As an initial matter, the district court rejected a sentence reduction before Howard
filed a motion. On top of that, the court never considered the new guidelines range. Still more,
the district court did not evaluate any of the factors, apart from deterrence, that the FSA requires
when imposing “a sentence sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a). To be
clear, the district court, in its discretion, may issue a sentence higher than the guideline range if it
has a “sufficiently compelling justification.” Boulding, 960 F.3d at 783-84 (quotation omitted).
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But that justification requires “a baseline of process that must include an accurate amended
guideline calculation.” Id. at 785. Here, the district court failed to do so by reimposing Howard’s
original sentence after mentioning only his previous criminal history and lack of employment, after
failing to recalculate his new guidelines range, and without waiting for a motion by Howard.
Accordingly, we remand Howard’s case for resentencing consistent with the First Step Act’s
requirements.
B. Reassignment of Howard’s Case
Pursuant to 28 U.S.C. § 2106, this court has the discretion to “order the reassignment of a
case on remand” to a new district court judge. Solomon v. United States, 467 F.3d 928, 935 (6th
Cir. 2006). In weighing whether a case should be remanded to a new judge, we have acknowledged
that reassignment “is an extraordinary power and should be rarely invoked.” Id. (quoting Sagan v.
United States, 342 F.3d 493, 501 (6th Cir. 2003)). To reflect that belief, “[r]eassignments [will be]
made infrequently and with the greatest reluctance.” Id. (quotation omitted). Our consideration
includes “(1) whether the original judge would reasonably be expected to have substantial
difficulty in putting out of his or her mind previously expressed views or findings; 2) whether
reassignment is advisable to preserve the appearance of justice; and (3) whether reassignment
would entail waste and duplication out of proportion to any gain in preserving the appearance of
fairness.” Id.We have only ordered reassignment in exceptionally rare circumstances. As one example,
where we felt compelled to do so, we reassigned a case after a district court judge “expressed her
dislike of drugs and imposed the maximum sentence available under the applicable guideline
range, stating, ‘You just got the wrong judge.’” United States v. Hagby, 20 F. App’x 299, 300 (6th
Cir. 2001) (order). In this case, Howard argues his situation is unique and requires us to reassign
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his resentencing to a new district court judge. Specifically, he notes that the district court denied
him relief under the FSA twice. In February 2019, the district court determined that he was
ineligible because he was a career offender. And after we remanded his case for resentencing, the
same district court judge resentenced Howard to 262 months of incarceration, a sentence
significantly higher than his revised guideline range under the FSA. See U.S.S.G. § 4B1.1(b)(2);
21 U.S.C. § 841(b)(1)(C). In support of his argument, Howard cites United States v. Hernandez,
604 F.3d 48 (2d Cir. 2010), where the Second Circuit remanded a case after a judge “twice imposed
a 405-month sentence without making the required findings or without providing the necessary
assurance that all of the relevant factors have been considered.” Id. at 56. That case, however, is
distinguishable from Howard’s. For one, Hernandez did not involve retroactive application of the
Fair Sentencing Act. Second, the district court resentenced Howard in March 2020, a date prior to
our most recent holdings establishing that courts consider the § 3553(a) factors at resentencing.
See Smith, 959 F.3d at 703; Boulding, 960 F.3d at 785; Maxwell, 991 F.3d at 690. After our most
recent decisions, we do not believe that the district court would have “substantial difficulty in
putting out of [mind his] previously expressed views or findings.” Solomon, 467 F.3d at 935
(quotation omitted). While we believe Howard must be sentenced in accordance with the FSA, his
case does not reflect the factual scenario where the “extraordinary power [of reassignment] . . .
rarely invoked” must be ordered to preserve the appearance of justice. Id. (quotation omitted).
III. CONCLUSION
For the foregoing reasons, we remand Howard’s case for resentencing consistent with this
opinion.
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