RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0198p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 19-6180
v. │
│
│
ROBERT WARE, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:96-cr-00008-1—Eli J. Richardson, District Judge.
Argued: June 18, 2020
Decided and Filed: June 30, 2020
Before: COLE, Chief Judge; McKEAGUE and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. Cecil W. VanDevender, UNITED STATES ATTORNEY’S OFFICE,
Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Cecil W. VanDevender, UNITED
STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
COLE, Chief Judge. Robert Ware was convicted in 1997 of several federal drug offenses
and sentenced to 360 months’ imprisonment. In 2019, Ware moved for a sentence reduction
under § 404 of the First Step Act. The district court concluded that Ware was eligible for relief
No. 19-6180 United States v. Ware Page 2
under the Act but denied Ware’s motion as a matter of discretion. Ware now appeals, arguing
that the district court abused its discretion by 1) insufficiently considering the sentencing factors
under 18 U.S.C. § 3553(a), 2) putting undue weight on the legislative purpose of the First Step
Act, and 3) inadequately considering that Ware’s statutory sentencing range would be lower
under current law. We affirm.
I. BACKGROUND
On March 7, 1997, a jury convicted Ware of three counts: conspiring to distribute and
possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (Count I); conspiring to
distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846
(Count II); and distributing and possessing with intent to distribute cocaine in violation of
21 U.S.C. § 841(a)(1) (Count III). The jury did not make any specific findings as to the drug
quantities associated with Ware’s crimes.
The Presentence Investigation Report (PSR) estimated that Ware’s offenses involved
3.6 grams of cocaine base and 26.6 kilograms of powder cocaine. It calculated Ware’s base
offense level under the sentencing guidelines at 34 because his crimes involved at least
15 kilograms but less than 50 kilograms of cocaine. See U.S.S.G. § 2D1.1(c)(3) (1995). The
relatively small amount of cocaine base did not affect this offense-level calculation.
Enhancements for Ware’s leadership role and possession of a firearm resulted in a total offense
level of 40. See id. §§ 2D1.1(b)(1), 3B1.1(a). Given Ware’s criminal history category of VI, the
PSR calculated Ware’s guidelines range as 360 months to life.
The PSR determined that Ware’s statutory sentencing range was 10 years to life on
Counts I and III under 21 U.S.C. § 841(b)(1)(A)(ii), which governed where an offense involved
5 kilograms or more of cocaine. Notably, at the time there was a 100:1 sentencing disparity for
offenses involving cocaine and those involving cocaine base. 50 grams or more of cocaine base
would require the same statutory sentencing range as 5 kilograms (i.e., 5,000 grams) of powder
cocaine. Compare 21 U.S.C. § 841(b)(1)(A)(ii) (1997) (cocaine) with id. § 841(b)(1)(A)(iii)
(cocaine base).
No. 19-6180 United States v. Ware Page 3
In regard to Count II, if Ware’s offense involved less than 5 grams of cocaine base, the
statutory range would have been 0 to 20 years’ imprisonment under § 841(b)(1)(C). In contrast,
if the offense involved 5 grams or more of cocaine base (but less than 50 grams), the statutory
range would have been 5 to 40 years’ imprisonment. See id. § 841(b)(1)(B)(iii). Because the
PSR estimated the amount of cocaine base at 3.6 grams, it indicated that 21 U.S.C.
§ 841(b)(1)(C) governed the statutory range for Count II.
At Ware’s sentencing hearing, however, the government argued that the amount of
cocaine base involved in Ware’s offense was higher. The court agreed that Ware’s crime seemed
to involve more than 3.6 grams of cocaine base but concluded that there was not enough
evidence that it involved 500 grams or more, which was the amount necessary to change Ware’s
base offense level under the guidelines. As a result, the court ruled that the PSR had correctly
calculated Ware’s guidelines range as 360 months to life. At the time of Ware’s sentencing in
1997, adherence to the federal sentencing guidelines was mandatory, as it was not until 2005 that
the Supreme Court declared them to be advisory. See United States v. Booker, 543 U.S. 220, 245
(2005).
The district court sentenced Ware to 360 months’ imprisonment followed by five years of
supervised release. The court did not specify the particular sentence as to each count, instead
announcing a general sentence for all three offenses. Nor did the district court specify the
particular statutory provisions of § 841(b)(1) under which Ware was sentenced. Our court
affirmed Ware’s convictions and sentence. See United States v. Ware, 161 F.3d 414, 415 (6th
Cir. 1998).
Two years later, the Supreme Court decided Apprendi v. New Jersey, holding that under
“the Sixth Amendment, any fact (other than [a] prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt.” 530 U.S. 466, 476 (2000) (citation omitted). Under Apprendi, a defendant
like Ware—whose jury never made any drug-amount finding—could not be sentenced under
21 U.S.C. §§ 841(b)(1)(A) or (B), as these provisions increase the statutory maximum based on
specified drug amounts. See, e.g., United States v. Page, 232 F.3d 536, 543 (6th Cir. 2000).
Instead, such a defendant could only be sentenced under § 841(b)(1)(C), which provides for a
No. 19-6180 United States v. Ware Page 4
statutory maximum of 20 years. Id. Nonetheless, we affirmed the denial of Ware’s 28 U.S.C.
§ 2255 motion for relief under Apprendi, reasoning that Apprendi does not apply retroactively to
initial § 2255 motions. See Ware v. United States, 55 F. App’x 351, 351–52 (6th Cir. 2003)
(citing Goode v. United States, 305 F.3d 378, 385 (6th Cir. 2002)).
In 2018, Congress passed the First Step Act. See Pub. L. No. 115-391, 132 Stat. 5194.
Under § 404 of the Act, “[a] court that imposed a sentence for a covered offense may, on the
motion of the defendant . . . impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at the time the
covered offense was committed.” Id. § 404(b). The “term ‘covered offense’ means 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.” Id. § 404(a).
The Fair Sentencing Act had increased the cocaine-base quantities required to trigger the
statutory penalties in 21 U.S.C. §§ 841(b)(1)(A)(iii) and (B)(iii), thereby reducing (but not
eliminating) the sentencing disparity between powder-cocaine and cocaine-base offenses. See
Pub. L. No. 111-220 § 2, 124 Stat. 2372.
In 2019, Ware moved for a sentence reduction under the First Step Act. Ware argued that
he was eligible for relief because his sentence of 360 months applied to each count, running
concurrently, and thus the sentencing court must have sentenced Ware under 21 U.S.C.
§§ 841(b)(1)(A)(iii) or (B)(iii) on Count II because 360 months exceeded the statutory maximum
of 20 years under § 841(b)(1)(C). The district court agreed, and as a result determined that Ware
had been convicted of a “covered offense” under the First Step Act. The district court, in turn,
found Ware eligible for relief, and neither party challenges this eligibility determination on
appeal.
But the district court denied Ware’s motion for a sentence reduction as a matter of
discretion, as the First Step Act expressly provides that “[n]othing in . . . section [404] shall be
construed to require a court to reduce any sentence pursuant to this section.” Pub. L. 115-391
§ 404(c), 132 Stat. at 5222. The court considered the sentencing factors under 18 U.S.C.
§ 3553(a), including Ware’s guidelines range (which remained unchanged), the circumstances of
Ware’s offenses (in which there was a small amount of cocaine base but a large amount of power
No. 19-6180 United States v. Ware Page 5
cocaine), and concerns over disparities between similarly situated defendants. See 18 U.S.C.
§§ 3553(a)(1),(4),(6). In considering potential disparities, the court reasoned that Ware’s
guidelines-minimum would have been 360 months even without the cocaine-base offense, and
First Step Act relief was unavailable to other offenders who had a similar amount of powder
cocaine but did not have an additional cocaine-base charge.
The court considered that the legislative purpose of § 404 of the First Step Act was to
make retroactive the Fair Sentencing Act’s reduction in the sentencing disparity between
powder-cocaine and cocaine-base offenses. It concluded that Ware’s case did not fit within that
purpose, as he had not been affected by this disparity. After all, Ware’s cocaine-base offense did
not affect the calculation of his sentence under the guidelines. The court recognized the potential
impact of Booker and Apprendi, as Booker would permit the court to vary below 360 months,
and Apprendi would alter the applicable statutory sentencing range given that no drug amounts
were charged in Ware’s indictment or found by a jury. But the court remained concerned about
sentencing disparities, as other defendants who were similarly sentenced for powder-cocaine
offenses (but, unlike Ware, did not have an additional cocaine-base charge that made them
eligible for relief under the First Step Act) could not benefit from retroactive application of
Booker and Apprendi.
In the end, the district court determined that Ware’s case was “not an appropriate [one]
for relief under the First Step Act.” (Dist. Ct. Op., R. 417, PageID 626.) Ware now appeals,
challenging the adequacy of the district court’s consideration of the sentencing factors under 18
U.S.C. § 3553(a), the legislative purpose of the First Step Act, and his statutory sentencing range
under current law.
II. ANALYSIS
To begin, the government’s brief challenges whether we have jurisdiction under 28
U.S.C. § 1291 or 18 U.S.C. § 3742(a). However, since the conclusion of briefing in this case, we
have held that 28 U.S.C. § 1291 provides jurisdiction in First Step Act appeals. See, e.g., United
States v. Lakento Smith, 958 F.3d 494, 500 (6th Cir. 2020). Moreover, 18 U.S.C. § 3742(a) is a
non-jurisdictional rule that, while limiting the relief that we may grant in certain cases, does not
No. 19-6180 United States v. Ware Page 6
apply—and therefore does not preclude relief—where a district court denied a defendant’s
request for a sentence reduction under the First Step Act. See United States v. Richardson,
960 F.3d 761, 764 (6th Cir. 2020) (per curiam); see also id. at 766 (Kethledge, J., concurring).
We review the district court’s decision to deny an eligible defendant’s First Step Act
motion for abuse of discretion. See, e.g., United States v. Woods, 949 F.3d 934, 938 (6th Cir.
2020); United States v. Marty Smith, 959 F.3d 701, 702 (6th Cir. 2020) (per curiam). The district
court’s decision is subject to review for both procedural and substantive reasonableness. See
United States v. Boulding, 960 F.3d 774, 783 (6th Cir. 2020). “[B]oth procedural and
substantive []reasonableness” are reviewed “for an abuse of discretion, although we review the
district court’s factual findings for clear error and its legal conclusions de novo.” United States
v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019).
A. The 18 U.S.C. § 3553(a) Sentencing Factors
When a district court rules upon a First Step Act motion where the defendant is eligible
for relief, it is required to consider the sentencing factors under 18 U.S.C. § 3553(a). See, e.g.,
Boulding, 960 F.3d at 784. And though it must consider “all [of] the . . . factors,” it has
“discretion [to] plac[e] more ‘weight on one factor’ because the particular facts in [a] case
warrant[] doing so.” United States v. Adkins, 729 F.3d 559, 572 (6th Cir. 2013) (citation
omitted). “While a district court need not explicitly . . . recite a list of [the § 3553(a)] factors, it
must provide a reasoned explanation . . . sufficiently thorough to permit meaningful appellate
review.” United States v. Blackwell, 459 F.3d 739, 773 (6th Cir. 2006).
Ware argues that the district court erred in focusing on only three of the factors under
§ 3553(a) and ignoring the requirement that a sentence be “sufficient, but not greater than
necessary.” But “how much weight a judge gives to any § 3553(a) factor” is owed “high[]
deferen[ce],” and we conclude that the district court’s consideration of 18 U.S.C. § 3553(a) was
sufficient. See Richardson, 960 F.3d at 765 (citation omitted). The district court assessed at
length several of the § 3553(a) factors that it deemed most pertinent to Ware’s case. The court
was not required to recite each factor in the statute, and it was not an abuse of discretion for the
court to have focused on the three factors that it deemed most relevant. Moreover, contrary to
No. 19-6180 United States v. Ware Page 7
Ware’s assertion, the court considered whether his sentence remained “sufficient, but not greater
than necessary.” See 18 U.S.C. § 3553(a). For example, it determined that the low end of
Ware’s guidelines range remained 360 months, which the court found to be an indication that his
sentence remained appropriate. We thus reject Ware’s challenge to the district court’s
consideration of the sentencing factors under § 3553(a).
B. The First Step Act’s Legislative Purpose
We have explained that district courts should “consider[] the [18 U.S.C.] § 3553(a)
factors with reference to the purposes of the First Step Act and Fair Sentencing Act.” Marty
Smith, 959 F.3d at 704. Thus, it was permissible for the district court to consider the First Step
Act’s legislative purpose in assessing Ware’s motion.
Ware asserts that the district court put undue weight on this purpose, but we disagree.
We owe deference to the weight that the district court assigns to various relevant factors. See,
e.g., Richardson, 960 F.3d at 765. The district court considered the First Step Act’s legislative
purpose alongside a thorough consideration of the § 3553(a) factors. Ware’s argument is
therefore without merit.
C. Ware’s Statutory Sentencing Range
Finally, Ware asserts that the district court failed to consider fully what his statutory
sentencing range would have been under current law. Because a jury did not find his offenses
involved specific drug amounts, under today’s law he could be lawfully sentenced only under
21 U.S.C. § 841(b)(1)(C), which would impose a statutory cap of 20 years per count—10 years
less than Ware’s current sentence. See Page, 232 F.3d at 543. In Ware’s view, the higher
sentencing ranges in §§ 841(b)(1)(A) and (B) could not be applied in his case under both
Apprendi and recent statutory interpretation of these provisions. See United States v. Dado,
759 F.3d 550, 570 (6th Cir. 2014) (describing “drug quantity [as] an element of the offense[s]” in
these statutory provisions). Our precedent forecloses Ware’s statutory construction argument,
and thus, as the government suggests, we focus on this argument as an alleged Apprendi error.
See United States v. Charles, 901 F.3d 702, 705 (6th Cir. 2018) (explaining that Dado’s “ruling
turned on the Constitution, not a statute”).
No. 19-6180 United States v. Ware Page 8
The government emphasizes that Apprendi does not apply retroactively to cases on
collateral review. This is true. See Goode, 305 F.3d at 382. But the Supreme Court has
explained that the “retroactivity” of a new constitutional rule concerns whether the rule provides
an independent basis on which to grant relief to a defendant. See Danforth v. Minnesota, 552
U.S. 264, 271 (2008). The Court has noted that the term “retroactivity” is a bit of a misnomer, as
this doctrine in fact concerns the “redressability” of a constitutional violation. See id. at 271 n.5.
Because “the source of a ‘new rule’ is the Constitution itself,” “the underlying right necessarily
pre-exists [the Supreme Court’s] articulation of the new rule.” Id. at 271; see also Am. Trucking
Ass’ns, Inc. v. Smith, 496 U.S. 167, 201 (1990) (Scalia, J., concurring) (explaining that “[s]ince
the Constitution does not change from year to year,” something is either unconstitutional or it is
not; and if it is unconstitutional, then this is so “whether occurring before or after [the Supreme
Court’s] decision”). Thus, Ware’s Sixth Amendment rights were violated when judge-found
facts were used to raise his statutory maximum sentence, even though this occurred before
Apprendi was decided.
For a defendant like Ware, who was sentenced before Apprendi, consideration of the
impact that Apprendi would have had on his statutory sentencing range is a factor that the district
court may consider when deciding whether, in its discretion, to grant relief to a defendant whom
Congress has made eligible for relief. See United States v. Allen, 956 F.3d 355, 357 (6th Cir.
2020). The Sixth Circuit has stated that a “district court . . . err[s] as a matter of law” if it
restricts itself to consideration of “the law and facts as they existed at the time of [the
defendant’s] original sentencing.” United States v. Martin, -- F. App’x --, 2020 WL 3251021, at
*3 (6th Cir. June 16, 2020); see also Allen, 956 F.3d at 357.
Consideration of Apprendi in deciding whether to grant an eligible defendant’s First Step
Act motion is therefore consistent with our prior holding that courts cannot apply Apprendi
retroactively as an independent basis for disturbing a defendant’s finalized sentence. See Goode,
305 F.3d at 382–83. In the First Step Act, Congress has provided express authority to disturb the
finality of Ware’s sentence and has done so without limiting the considerations that the court
may contemplate in utilizing this authority. See Allen, 956 F.3d at 357 (holding that “Section
No. 19-6180 United States v. Ware Page 9
404’s silence regarding the standard that courts should use in determining whether to reduce a
defendant’s sentence cannot be read to limit the information that courts may consider”).
Here, the district court did not abuse its discretion in its consideration of Apprendi. The
court considered the fact that, under Apprendi, Ware’s statutory maximum would have been
lower because specified drug amounts were not found by the jury or charged in the indictment.
The court ultimately decided that this factor did not weigh heavily in favor of granting relief, due
in large part to concern regarding disparities with other similarly situated defendants. In doing
so, on this record, the district court did not abuse its discretion.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s order denying Ware’s motion for
relief under the First Step Act.