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Sixth Circuit panel finds district judge gave insufficient justification for not reducing crack sentence after congressional reductions

By Douglas Berman

A little opinion yesterday from a Sixth Circuit panel in US v. Smith, No. 19-5281 (6th Cir. May 15, 2020) (available here), has a lot of noteworthy elements.  For starters, the defendant appealed pro se and prevails. And he did so on a claim that the district court’s failure to reduce his crack sentence following passage of the Fair Sentencing Act and FIRST STEP Act was problematic. Here is some of the backstory and the heart of the ruling from the panel opinion:  

In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 845, 851.  Because he had a prior felony drug conviction, he faced a mandatory-minimum sentence of 20 years of imprisonment, even though his advisory sentencing range under the United States Sentencing Guidelines would otherwise have been 168 to 210 months.  The district court sentenced him to the mandatory minimum: 240 months of imprisonment plus ten years of supervised release.

In 2018, Smith filed a letter with the district court asking for counsel to be appointed to review whether the First Step Act applied to his sentence…. The district court construed Smith’s letter as a motion seeking a sentence reduction under 18 U.S.C. § 3582(c).  The court determined that Smith was eligible for a reduction under § 3582(c) and the First Step Act, but declined to grant one.  United States v. Smith, No. CR 6:06- 021-DCR-1, 2019 WL 1028000 (E.D. Ky. Mar. 4, 2019).  Smith now appeals….

The district court acknowledged that under the current sentencing regime, Smith’s guideline range after applying the retroactive guidelines amendments would be 77 to 96 months of imprisonment and he would be subject to a 10-year mandatory-minimum sentence.  Smith, 2019 WL 1028000, at *3.  However, the district court denied Smith’s motion for a reduction, concluding that his original 20-year sentence remained appropriate….

The variance in this case is certainly a major one.  It is twice the maximum of the guideline range set by the statute, and two-and-a-half times what the guideline would otherwise be without the statutory minimum.  Moreover, the fact that Congress was the actor that reduced Smith’s guideline range through the passage of the First Step Act, rather than the Sentencing Commission, if anything increases rather than decreases the need to justify disagreement with the guideline….

The district court’s explanation for denying Smith’s motion for a reduction does not adequately explain why Smith should not receive at least some sentence reduction.  After reciting Smith’s criminal conduct that resulted in his 2006 conviction, the district court recalled that it had examined the § 3553(a)(2) sentencing factors and had explained why a sentence of 20 years’ imprisonment was appropriate during Smith’s original sentencing in March 2007.  Beyond relying on the court’s analysis at the original sentencing hearing, the court briefly discussed the nature and circumstances of Smith’s offense and the need to protect the public — two of the § 3553(a) factors.  The court pointed to the scale and harm of Smith’s criminal conduct and determined that Smith has a high risk for recidivism based on statistical information of people who, like Smith, have a significant criminal history.  However, these considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress.  See 28 U.S.C. § 991(b)Rita v. United States, 551 U.S. 338, 348–49 (2007).  This is especially true when the district court previously found the at-guideline range sentence to be appropriate.

Ultimately, the district court failed to provide a sufficiently compelling justification for maintaining a sentence that is now twice the guideline range set by Congress. We are confident on remand that the district court can determine whether, in its discretion, a sentence less than 20 years is appropriate after considering the § 3553(a) factors with reference to the purposes of the First Step Act and Fair Sentencing Act.

I am pleased to see that the Sixth Circuit panel was able to see problems with the ruling below without the help of counsel, but I find jarring and disturbing that the district judge here got this matter started by construing a letter requesting counsel as a motion seeking a sentence reduction that the judge then denied seemingly without any briefing. As readers may recall, just last week the Supreme Court dinged the Ninth Circuit in Sineneng-Smith for taking over a case from the parties, and I think the Sixth Circuit might have reasonably assailed the district judge for similarly problematic behavior here.

Last but not least, it should be noted that the district judge in this matter is Danny C. Reeves, who just happens to be one of the two remaining active members of the US Sentencing Commission.  There is a particular irony in the Sixth Circuit panel needing to remind a member of the USSC about which “considerations are accounted for within the guidelines calculation and therefore do not provide sufficient justification for maintaining a sentence that is twice the maximum of the guideline range set by Congress.”