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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12078
Non-Argument Calendar
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D.C. Docket No. 0:06-cr-60350-JIC-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICKEY PUBIEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 25, 2020)
Before NEWSOM, LAGOA and HULL, Circuit Judges.
PER CURIAM:
Mickey Pubien, a federal prisoner now proceeding with counsel, appeals the
district court’s order granting in part and denying in part his pro se motion for
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relief under the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194. On
appeal, Pubien argues that he was entitled to a plenary resentencing under First
Step Act §§ 401 and 404. He also argues that the district court should have
reduced his total sentence under the “sentencing package” doctrine. We are not
persuaded by Pubien’s arguments, and we therefore affirm.
I
In 2006, a federal grand jury indicted Mickey Pubien for his involvement in
an illegal drug distribution scheme. Pubien was charged with conspiracy to
possess with intent to distribute five kilograms or more of cocaine in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and § 846 (Count 1); conspiracy to possess
with intent to distribute 50 grams or more of crack cocaine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A) and § 846 (Count 3); and four counts of
possession with intent to distribute 500 grams or more of cocaine in violation of
§§ 841(a)(1) and (b)(1)(B) (Counts 5, 9, 22, and 25).
After a jury trial, Pubien was convicted on all counts. Pubien’s Presentence
Investigation Report, to which he did not object, set his total offense level at 38
and his criminal history category at III—which typically would have resulted in an
Sentencing Guideline imprisonment range of 292 to 365 months’ imprisonment.
Because Pubien had previously been convicted of three drug felonies, however, the
government filed notice that—under 21 U.S.C. § 841(b)(1)(A)—Pubien faced
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mandatory statutory penalties of life imprisonment without release as to Counts 1
and 3. Pubien’s Guideline imprisonment range was therefore increased to life
imprisonment, pursuant to U.S.S.G. § 5G1.1(b). The district court sentenced
Pubien to concurrent terms of life imprisonment on all counts, a decision we
affirmed on direct appeal. United States v. Pubien, 349 Fed. App’x 473, 478 (11th
Cir. 2009).
In February 2019, Pubien filed a motion for relief under the First Step Act,
seeking a reduction of his sentence. The district court granted Pubien’s motion in
part and denied it in part. The district court held that only one of the convictions
underlying Pubien’s sentence—conspiracy to possess with intent to distribute 50
grams or more of crack cocaine (Count 3)—qualified as a “covered offense” under
the First Step Act. Accordingly, the district court exercised its discretion under the
Act to reduce Pubien’s Count 3 sentence to 10 years, but it left Pubien’s remaining
life sentences unchanged. Pubien filed a motion for reconsideration, which the
district court denied.
II
Pubien makes three arguments on appeal. First, Pubien argues that the
district court erred in holding that First Step Act § 404 does not allow for
resentencing of his powder-cocaine offenses (Counts 1, 5, 9, 22, and 25). Second,
he argues that the district court “ignored” a different provision of the First Step
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Act—§ 401—which, he alleges, also permits resentencing for his powder-cocaine
offenses. Finally, he argues that his sentences are “interdependent” and that,
because he successfully challenged his crack-cocaine sentence (Count 3), he is
entitled to full resentencing on all of his underlying counts under the “sentencing
package” doctrine. We address each argument in turn.
A
First, we consider Pubien’s argument that First Step Act § 404 gives the
district court authority to reduce the life-imprisonment sentences imposed for his
powder-cocaine offenses (Counts 1, 5, 9, 22, and 25).1 Generally, a court “may not
modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).
Under one of the limited exceptions to this rule, however, a court “may modify an
imposed term of imprisonment to the extent otherwise expressly permitted by
statute or by Rule 35 of the Federal Rules of Criminal Procedure.” Id.
§ 3582(c)(1)(B); see also United States v. Phillips, 597 F.3d 1190, 1196–97 (11th
Cir. 2010) (“[A]bsent other statutory authority, . . . a district court lacks
jurisdiction to modify a defendant’s original imprisonment sentence except within
seven days as provided by Rule 35(a).”). The question here is whether First Step
1
We review the district court’s interpretation of a statute de novo. United States v. Zuniga-
Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012).
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Act § 404 provides the district court with the statutory authority necessary to
modify Pubien’s powder-cocaine sentences. We hold that it does not.
To understand the scope of First Step Act § 404, we must first start with two
provisions in a different statute—§§ 2 and 3 of the Fair Sentencing Act of 2010,
Pub. L. No. 111-220, §§ 2–3, 124 Stat. 2372. Sections 2 and 3 of the Fair
Sentencing Act reduced statutory penalties for certain offenses involving crack
cocaine. Specifically, § 2 of the Fair Sentencing Act reduced the disparity between
the quantities of crack cocaine and powder cocaine required to trigger the statutory
penalties prescribed by 21 U.S.C. §§ 841(b)(1) and 960(b). Dorsey v. United
States, 567 U.S. 260, 264 (2012) (stating that the Fair Sentencing Act “reduc[ed]
the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1”). Section 3
eliminated the mandatory minimum sentence for simple possession of crack
cocaine in 21 U.S.C. § 844(a). Dorsey, 567 U.S. at 269. Under the Fair
Sentencing Act, itself, however, §§ 2 and 3 apply only to offenders sentenced after
August 3, 2010—the date the statute took effect. See Dorsey, 567 U.S. at 264.
First Step Act § 404 made §§ 2 and 3 of the Fair Sentencing Act
retroactively applicable. In particular, First Step Act § 404 provides that a district
court is authorized 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.” § 404(b) (citation omitted). And it defines the term “covered
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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.” § 404(a) (citation omitted).
As the district court held, Pubien’s crack cocaine conviction (Count 3)
qualifies as a “covered offense” under § 404 of the First Step Act. Section 2 of the
Fair Sentencing Act modified the statutory penalties for Pubien’s crack cocaine
offense, and Pubien committed the offense before August 3, 2010. The district
court therefore had the discretion, under First Step Act § 404, to reduce Pubien’s
sentence for that count. The district court was not authorized, however, to reduce
the sentences imposed for any of Pubien’s remaining convictions (Counts 1, 5, 9,
22, and 25), because the sentences imposed for those convictions—all of which
related to powder cocaine—were not modified by section 2 or 3 of the Fair
Sentencing Act. None of those convictions, in other words, are “covered offenses”
under First Step Act § 404. We also note that, even if we somehow read § 404 to
encompass Pubien’s remaining convictions, it would do him little good: § 404 only
permits resentencing “as if sections 2 and 3 of the Fair Sentencing Act of 2010
were in effect at the time the covered offense was committed.” (citation omitted).
And, as we’ve stated, sections 2 and 3 of the Fair Sentencing Act do nothing to
alter the penalties for Pubien’s powder cocaine convictions.
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B
Pubien next argues that First Step Act § 401 entitles him to a reduced
sentence for his powder-cocaine convictions. First Step Act § 401 amended 21
U.S.C. § 841(b)(1)(A) by changing the mandatory penalties it imposed for repeat
offenders, as well as altering the types of offenses that trigger those penalties.
Specifically, while § 841(b)(1)(A) previously stated that a prior conviction for a
“felony drug offense” would trigger mandatory penalties, First Step Act § 401(a)
changed the prior-conviction requirement to a “serious drug felony or serious
violent felony.” First Step Act § 401(a) also changed the mandatory minimum
sentence for defendants who have had two or more such prior convictions, from
life imprisonment to 25 years. Pubien argues that, because of these changes, he is
entitled to a decreased sentence for his powder-cocaine convictions.
We disagree. The First Step Act did not make § 401’s amendments
retroactively applicable to defendants sentenced prior to its enactment. In fact,
contrary to Pubien’s argument, it explicitly makes the amendments not
retroactively applicable to such defendants: it states that the provisions of §401
“shall apply to any offense that was committed before the date of enactment of this
Act, if a sentence for the offense has not been imposed as of such date of
enactment.” § 401(c). Pubien, who was sentenced on October 26, 2007, is
therefore not entitled to a sentence reduction under First Step Act § 401.
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C
Finally, Pubien argues that he is entitled to resentencing for his powder
cocaine convictions under the “sentencing package” doctrine. The sentencing
package doctrine is a judicial practice born of the reality that, “especially in the
guidelines era,” sentencing a defendant on multiple counts is often an “inherently
interrelated, interconnected, and holistic process.” United States v. Fowler, 749
F.3d 1010, 1015 (11th Cir. 2014). Accordingly, under the sentencing package
doctrine, district courts are “free to reconstruct [a defendant’s] sentencing
package” when “one of more of the component counts is vacated”—thereby
allowing the court to “ensure that the overall sentence remains consistent with the
guidelines.” Id.
The sentencing-package doctrine has no place here, however, where the
original sentence imposed was not a package of interconnected sanctions. When
Pubien was originally sentenced, his Count-1 and Count-3 convictions each
independently required the imposition of a life sentence. Although it’s true that the
district court later reduced Pubien’s Count-3-based life sentence under the First
Step Act, that sentence had (and has) no effect on his Count-1-based mandatory
sentence. There is no risk, in other words, that the “district court’s original
sentencing intent may [have] be[en] undermined” by the subsequent Count-3
sentence reduction. Pepper v. United States, 562 U.S. 476, 507 (2011) (quotation
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omitted). Accordingly, no wholesale reconfiguration of Pubien’s sentence is
necessary. See id.
III
Because the First Step Act does not give the district court the authority to
reduce Pubien’s powder-cocaine sentences, and because there is no need to
repackage Pubien’s overall sentence, we affirm the district court’s decision to grant
in part and deny in part Pubien’s motion to modify his sentence.
AFFIRMED.
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