United States v. Kojak Batiste

Case: 19-30927 Document: 00515637842 Page: 1 Date Filed: 11/13/2020

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
November 13, 2020
No. 19-30927 Lyle W. Cayce
Clerk

United States of America,

Plaintiff—Appellee,

versus

Kojak Batiste,

Defendant—Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CR-145-1

Before Graves, Costa, and Engelhardt, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Defendant-Appellant, Kojak Batiste, appeals the district court’s
denial of his motion for sentence reduction filed pursuant to section 404 of
the First Step Act of 2018, Pub. L. 115-391, §404, 132 Stat. 5194–249 (2018).
The First Step Act allows defendants who were convicted and sentenced for
certain offenses involving cocaine base (“crack”), prior to the effective date
of the Fair Sentencing Act of 2010, to be resentenced as if the reduced
statutory minimum penalties implemented by the Fair Sentencing Act were
in place at the time the offenses were committed. Finding no abuse of
discretion or deficiency in the district court’s ruling relative to Batiste’s
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No. 19-30927

sentence of imprisonment, we AFFIRM that aspect of the district court’s
November 7, 2019 order. Because the order does not expressly reference
Batiste’s request relative to his term of supervised release, however, we
REMAND that portion of Batiste’s motion to the district court for
consideration and disposition in accordance with this opinion.
I.
Kojak Batiste pleaded guilty in 2007 to distributing 50 grams or more
of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii). By
virtue of a bill to establish prior convictions having been filed pursuant to 21
U.S.C. § 851, Batiste’s statutory mandatory minimum sentence was 20 years,
rather than the 10 years that otherwise would have been applicable (in 2007)
under 21 U.S.C. §§ 841(a)(1), (b)(1)(A). Based on a career offender
enhancement, pursuant to U.S.S.G. § 4B1.1, his total offense level was 34
and his criminal history category was VI. His resulting sentencing guidelines
range of imprisonment was 262 to 327 months of imprisonment. A statutory
minimum term of 10 years of supervised release applied. On June 27, 2007,
Batiste was sentenced as a career offender to a within-guidelines sentence of
262 months of imprisonment and 10 years of supervised release. His direct
appeal was dismissed, and his efforts to obtain postconviction relief,
including challenges to his career offender classification and resulting
sentence of 262 months of imprisonment, were unsuccessful.
In February 2019, Batiste filed a pro se motion seeking a reduction of
sentence under section 404 of the First Step Act. In September 2019, Batiste,
represented by counsel, submitted a memorandum in support of the motion.
The government opposed the motion. By written Order and Reasons entered
on November 7, 2019, the district court denied the motion. This appeal
followed.

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II.
The district court’s discretionary decision whether to reduce a
sentence pursuant to the First Step Act is generally reviewed for an abuse of
discretion. United States v. Stewart, 964 F.3d 433, 435 (5th Cir. 2020); United
States v. Jackson, 945 F.3d 315, 319 & n.2 (5th Cir. 2019), cert. denied, 140
S. Ct. 2699 (2020). It is the defendant’s burden to “show that the trial
judge's action amounted to an . . . abuse of discretion.” United States v.
Garcia, 693 F.2d 412, 415 (5th Cir. 1982). “A court abuses its discretion
when the court makes an error of law or bases its decision on a clearly
erroneous assessment of the evidence.” United States v. Larry, 632 F.3d 933,
936 (5th Cir. 2011) (internal quotation marks and citation omitted). “[T]o
the extent the court’s determination turns on the meaning of a federal statute
such as the [First Step Act],” de novo review applies. Jackson, 945 F.3d at 319
(internal quotation marks and citation omitted).
III.
The First Step Act of 2018 was enacted to remedy a gap left open by
the Fair Sentencing Act of 2010 and various amendments to the United
States Sentencing Guidelines relative to sentences imposed for certain crack
offenses. In 2010, Congress enacted the Fair Sentencing Act in order to,
among other things, reduce the disparity in treatment of crack and powder
cocaine offenses by increasing the threshold quantities of crack required to
trigger the mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)
and (B). See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat.
2372 (2010). Specifically, section 2 of the Fair Sentencing Act “increased
the drug amounts triggering mandatory minimums for crack trafficking
offenses from 5 grams to 28 grams in respect to the 5-year minimum and from
50 grams to 280 grams in respect to the 10-year minimum.” Dorsey v. United
States, 567 U.S. 260, 269 (2012). In effect, section 2 “reduc[ed] the crack-
to-powder cocaine disparity from 100–to–1 to 18–to–1.” Id. at 264. Section

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3 of the Fair Sentencing Act “eliminated a mandatory minimum sentence for
simple possession of cocaine base.” United States v. Hegwood, 934 F.3d 414,
418 (5th Cir.), cert. denied, 140 S. Ct. 285 (2019). The Fair Sentencing Act
additionally instructed the Sentencing Commission to “make such
conforming amendments to the Federal [S]entencing [G]uidelines as the
Commission determines necessary to achieve consistency with other
guideline provisions and applicable law.” Pub. L. No. 111-220, § 8(2), 124
Stat. at 2374.
Importantly, the Fair Sentencing Act’s statutory changes were not
retroactive. Jackson, 945 F.3d at 318. As a result, sentence modifications
based on Sentencing Guidelines amendments that were implemented
pursuant to the Fair Sentencing Act remained unavailable to (1) persons
whose sentences were restricted by pre-Fair Sentencing Act statutory
minimums; and (2) persons ineligible under 18 U.S.C. § 3582(c)(2) by virtue
of having been sentenced as career offenders, pursuant to U.S.S.G. § 4B1.1,
“based on” higher guideline ranges than the reduced drug quantity guideline
ranges in U.S.S.G. § 2D1.1. See, e.g., Stewart, 964 F.3d at 436 (citing U.S.S.G.
§ 1B1.10, cmt. 1); United States v. Quintanilla, 868 F.3d 315, 318 (5th Cir.
2017).
On December 21, 2018, however, the First Step Act of 2018 became
law, introducing a number of criminal justice reforms. Pertinent here,
section 404 of the First Step Act concerns retroactive application of the Fair
Sentencing Act of 2010. Pub. L. No. 115-391, § 404(b), 132 Stat. at 5222. 1

1 Section 404 of the First Step Act of 2018 provides:

(a) DEFINITION OF COVERED OFFENSE.—In this section, 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 (Public Law
111–220; 124 Stat. 2372), that was committed before August 3, 2010.

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Specifically, section 404 gives courts the discretion to retroactively apply the
Fair Sentencing Act to reduce a prisoner’s sentence for certain covered
offenses. Hegwood, 934 F.3d at 418 (“It is clear that the First Step Act grants
a district judge limited authority to consider reducing a sentence previously
imposed.”). A defendant is eligible for a sentence reduction under the First
Step Act if: (1) he committed a “covered offense”; (2) his sentence was not
previously imposed or reduced pursuant to the Fair Sentencing Act; and (3)
he did not previously file a motion under the First Step Act that was denied
on the merits. Id. at 416–17.
A “covered offense” within the meaning of the First Step Act is “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.” Pub. L. 115-391, §404(a), 132 Stat. at
5222. Whether a defendant has a “covered offense” under section 404(a)
depends on the statute under which he was convicted, rather than facts
specific to the defendant’s violation. Jackson, 945 F.3d at 319–20. Thus, if a
defendant was convicted of violating a statute whose penalties were modified

(b) DEFENDANTS PREVIOUSLY SENTENCED.—A court that imposed a
sentence for a covered offense may, on motion of the defendant, the Director of the Bureau
of Prisons, the attorney for the Government, or the court, 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.
(c) 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 the amendments made by sections 2 and 3 of the Fair Sentencing Act
of 2010 (Public Law 111–220; 124 Stat. 2372) 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. Nothing in this section shall be construed to
require a court to reduce any sentence pursuant to this section.
Pub. L. No. 115-391, § 404, 132 Stat. at 5222 (emphasis added).

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by the Fair Sentencing Act, that defendant satisfies that aspect of a “covered
offense.” Id.
In terms of procedure, a reduced sentence may be imposed, pursuant
to the First Step Act, upon motion made by a party, the Bureau of Prisons, or
the court. Pub. L. No. 115-391, § 404(b), 132 Stat. at 5222. Nothing in section
404 expressly requires that a hearing be held. Jackson, 945 F.3d at 321. And,
in Jackson, we rejected the defendant’s contention that the district court
abused its discretion by “supposedly failing to conduct a ‘complete review’
of his motion ‘on the merits.’” Id. In contrast to cases in which a procedural
deficiency had occurred, we determined that Jackson had had “his day in
court” where he had “filed a detailed motion explaining why he should get a
new sentence; the government responded; the court denied the motion; and,
on limited remand, it explained why.” Id. at 322.
Eligibility for resentencing under the First Step Act does not equate
to entitlement. Id. at 321. Indeed, the statute expressly states: “Nothing in
this section shall be construed to require a court to reduce any sentence
pursuant to this section.” Pub. L. No. 115-391, § 404(c), 132 Stat. at 5222.
To the contrary, the decision whether to wield the resentencing authority
granted by the First Step Act is one committed to the court’s discretion.
Jackson, 945 F.3d at 321.
The First Step Act likewise expressly prescribes the scope of the re-
sentencing authority granted to courts. Specifically, section 404 directs: “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.” Pub. L. No. 115-391,
§ 404(b), 132 Stat. at 5222. Given this statutory directive, “[i]t is clear that
the First Step Act grants a district judge [only] limited authority to consider
reducing a sentence previously imposed.” Hegwood, 934 F.3d at 418.

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IV.
Since the statute’s enactment in 2018, we, like the other circuit courts,
have been asked to answer various questions regarding the proper
interpretation and application of the First Step Act. These decisions inform
and aid our consideration of the issues presented in this appeal.
A. Other Changes in the Law
In Hegwood, the defendant’s sentence was based in part on a § 4B1.1
enhancement because he was determined to be a career offender due to his
two prior felony controlled-substance offenses. Hegwood, 934 F.3d at 415. In
addition to seeking the benefit of the reduced penalties set forth in the Fair
Sentencing Act via section 404 of the First Step Act, Hegwood also sought
application of United States v. Tanksley, 848 F.3d 347, 352 (5th Cir.), opinion
supplemented, 854 F.3d 284 (5th Cir. 2017), in which this court held that, in
light of Mathis v. United States, 136 S. Ct. 2243 (2016), a particular Texas
controlled substance offense no longer qualifies as a predicate conviction for
purposes of the § 4B1.1 career offender enhancement. Id. at 416. In support
of his position, Hegwood argued that the use of the word “impose” in the
First Step Act, rather than the word “modify” found in 18 U.S.C. § 3582(c),
along with the limitations referenced in U.S.S.G. §1B1.10(a)(3) for § 3582(c)
modifications, meant that “the First Step Act requires a [Sentencing]
Guidelines calculation to be made that is correct as of the time of the new
sentence, and Section 3553(a) factors are to be applied anew.” Id. at 417–18.
Section 3553(a)(4) directs that a district court, “in determining the particular
sentence to be imposed, shall consider . . . the kinds of sentence and the
sentencing range established for . . . the applicable category of offense
committed by the applicable category of defendant as set forth in the
guidelines.” 18 U.S.C. § 3553(a)(4).
Rejecting Hegwood’s argument, we reasoned that, under the First
Step Act, “calculations that had earlier been made under the Sentencing

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Guidelines are adjusted ‘as if’ the lower drug offense sentences were in effect
at the time of the commission of the offense.” Hegwood, 934 F.3d at 418.
“That is the only explicit basis stated for a change in the
sentencing[,][and][i]n statutory construction, the expression of one thing
generally excludes the other.” Id. Accordingly, we concluded:
The express back-dating of Sections 2 and 3 of the Fair
Sentencing Act of 2010—saying the new sentencing will be
conducted “as if” those sections were in effect “at the time the
covered offense was committed”— supports that Congress did
not intend that other changes were to be made as if they too
were in effect at the time of the offense.
Id. (emphasis added). We thus explained the mechanics of the First Step Act
resentencing process as follows:
The district court decides on a new sentence by placing
itself in the time frame of the original sentencing, altering the
relevant legal landscape only by the changes mandated by the
2010 Fair Sentencing Act. The district court’s action is better
understood as imposing, not modifying, a sentence, because
the sentencing is being conducted as if all the conditions for the
original sentencing were again in place with the one exception.
The new sentence conceptually substitutes for the original
sentence, as opposed to modifying that sentence.
Id. at 418–19. On the other hand, like the sentence modification procedure in
§ 3582(c)(2), “which opens the door only slightly for modification of
previously imposed sentences for certain specified reasons,” imposition of a
new sentence under § 404(b) similarly does not involve a “plenary
resentencing proceeding” and permits “only a limited adjustment.” Id. at
418 (quoting Dillon v. United States, 560 U.S. 817, 826 (2010)). Because of
the district court’s limited role under § 404(b), we held that “[t]he district
court committed no error in continuing to apply the career-criminal
enhancement when deciding on a proper sentence for Hegwood.” Id. at 419.

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In reaching this conclusion, we found no conflict between our
interpretation of section 404 of the First Step Act and the provisions of 18
U.S.C. §§ 3582 and 3553. Id. at 418. We reasoned:
The district court under Section 3582(a) is only required to
consider the Section 3553(a) factors “to the extent that they
are applicable.” The government, relying on the fact that the
First Step Act gives the court discretion whether to reduce a
sentence, argues that the ordinary Section 3553(a)
considerations apply to determine whether to reduce the
defendant’s sentence.
Id.
Earlier this year, in Stewart, we again faced a question concerning the
legal authorities under which a First Step Act motion is to be considered. 964
F.3d at 437. In that case, the parties did not dispute Stewart’s eligibility to
seek a sentencing reduction under the First Step Act. Rather, they disagreed
regarding the version of the Sentencing Guidelines that governed imposition
of his reduced sentence. Citing Hegwood, the government argued Stewart’s
offense level should have been calculated using the 2001 Sentencing
Guidelines (those in effect at the time of his original sentencing), rather than
the less onerous 2018 Sentencing Guidelines, which by virtue of Amendment
750, would yield a lower offense level and resulting sentencing range. We
held that the district court erred in refusing to apply Amendment 750 in
calculating Stewart’s post-First Step Act sentencing range, reasoning that
Amendment 750 is “an alteration of the legal landscape” promulgated
pursuant to the Fair Sentencing Act itself. Stewart, 964 F.3d at 437.
Significantly, Hegwood was distinguished as prohibiting only
consideration of interim change in the law having nothing to do with the Fair
Sentencing Act. Id. at 438. (“Hegwood primarily stands for the proposition
that defendants seeking relief under section 404(b) of the [First Step Act]
cannot take advantage of changes in the law that have nothing to do with [the

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Fair Sentencing Act].”) “Unlike the defendant in Hegwood, Stewart [did] not
seek removal of his career offender status at all, let alone based on
intervening, non-FAIR-related caselaw.” Id. “Instead, Stewart invoke[d] a
change in the law that did result from [the Fair Sentencing Act]: Amendment
750’s revision of the marijuana equivalency for crack cocaine.” Id. “Put
differently, Amendment 750 is an alteration to the legal landscape ‘mandated
by [the Fair Sentencing Act]’ and therefore a valid consideration in the
‘mechanics of First Step Act sentencing.’” Id. at 439 (quoting Hegwood, 934
F.3d at 418).
Accordingly, although Stewart’s career offender enhancement was not
eliminated by the First Step Act (consistent with the limited legal changes
that Hegwood has determined that the First Step Act authorizes), the Fair
Sentencing Act’s changed statutory minimums and maximums reduced his
corresponding career offender offense level (from 37 to 34), pursuant to
U.S.S.G. § 4B.1.1, such that his resulting guidelines range was 262–327
months imprisonment (using the 2018 Sentencing Guidelines), rather than
324–405 months imprisonment (using the 2001 Sentencing Guidelines). Id.
at 436–39. 2 Notably, the Stewart panel was careful to emphasize that “we
need not and do not decide whether a district court faced with a resentencing
motion invoking section 404(b) of the [First Step Act] must
apply all retroactive amendments to the Sentencing Guidelines.” Id. at 439.

2
Relatedly, in Hegwood, we affirmed the district court’s two-point reduction of
Hegwood’s career offender offense level (based on the First Step Act), as well as the district
court’s refusal to eliminate Hegwood’s career offender enhancement based on
“intervening caselaw” that would, if applied, “preclude[] his prior convictions from
triggering the career offender enhancement altogether.” See Stewart, 964 F.3d at 438
(citing Hegwood, 934 F.3d at 416–19).

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B. Consideration of Post-Sentencing Conduct
In Jackson, which was decided in the interim between Hegwood and
Stewart, we rejected the assertion that the district court is obligated to
consider the movant’s post-sentencing conduct. 945 F.3d at 322 & n.7. To
explain our ruling, we reiterated Hegwood’s conclusions that, under the First
Step Act, the court (1) “plac[es] itself in the time frame of the original
sentencing, altering the relevant legal landscape only by the changes mandated
by the 2010 Fair Sentencing Act”; and (2) “cannot consider other post-
sentencing changes in the law.” Id. (quoting Hegwood, 934 F.3d at 418)
(emphasis added). Given those determinations, we reasoned, in Jackson,
that it “would therefore make little sense to mandate . . . that the court
consider a defendant’s post-sentencing conduct, which would be to peer
outside ‘the time frame of the original sentencing.’” 945 F.3d at 322 & n.8
(emphasis added in part). Nevertheless, “we did ‘not hold that the court
cannot consider post-sentencing conduct—only that it isn’t required to.’” Id.
at 322 n.7 (emphasis added).
C. Other Consideration of 18 U.S.C. § 3553 (a) Factors
In Jackson, finding no abuse of discretion had occurred, we
additionally concluded that the district court “properly considered Jackson’s
extensive criminal history and role in the offense in declining to reduce the
sentence.” 945 F.3d at 322. In other words, we determined that the district
court could consider the § 3553(a) factors in deciding whether to reduce a
sentence under the First Step Act. Id.; see 18 U.S.C. § 3553(a)(identifying
factors including “the nature and circumstances of the offense and the
history and characteristics of the defendant”). However, we did not “hold
that the court must consider the factors in [] § 3553(a) in deciding whether to
resentence under the [First Step Act]; instead, we “reserve[d] the issue for
another day.” Id. at 322 n.8.

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D. Reduction of a “Within Guidelines Range” Sentence
Most recently, in United States v. Carr, 823 F. App’x 252 (5th Cir.
2020), the appellant argued that the district court erroneously interpreted
the First Step Act to preclude the reduction of a sentence that remained
within the imprisonment range calculated pursuant to applicable provisions
of the United States Sentencing Guidelines (hereinafter referred to as the
“guidelines range”) at the time of resentencing. Despite the First Step Act’s
statutory changes, Carr’s resulting guidelines range was unaffected and his
original sentence remained within that range. Carr was designated a career
offender under U.S.S.G. § 4B1.1 and had been sentenced to concurrent 327-
month prison terms on two counts, as well as a consecutive term of 60
months on a firearm offense. In his First Step Act motion, Carr argued that
his good behavior in prison warranted a downward reduction from the
otherwise applicable guidelines range. Denying Carr’s motion, the district
court explained: “A downward variant sentence of imprisonment is not
imposed since the original sentencing judge imposed a guideline sentence.”
On appeal, both parties presumed that the First Step Act permits a
downward departure from the guidelines range in this context. Carr argued
that the district court, however, erroneously interpreted the First Step Act
to preclude the reduction of a sentence that remained within the guidelines
range at the time of a First Step Act resentencing. In support of this position,
Carr emphasized the district court’s failure to “address any of the arguments
and evidence” that he had presented, including his “claimed exemplary post-
sentencing conduct in prison.”
Affirming the district court, we noted that Jackson expressly held that
district courts applying the First Step Act are not “obliged to consider . . .
post-sentencing conduct.” Carr, 823 F. App’x at 255 n.2 (quoting Jackson,
945 F.3d at 321) (emphasis added). We further concluded that Carr had

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failed to show that the district court based its decision on an erroneous
interpretation of the First Step Act, explaining:
On the contrary, a more plausible interpretation of the
district court’s reasoning is that the court exercised its
discretion and chose not to reduce Carr’s original term of
imprisonment. For example, the court explained that a
downward variance “is” not imposed—not that a downward
variance “must” not be imposed, “cannot” be imposed, or
“may” not be imposed. In the absence of any mandatory
language, we cannot assume that the district court
misinterpreted the [First Step] Act and perceived itself to be
bound by a statutory rule or requirement. Indeed, Carr himself
argued in the district court that the First Step Act “places no
restriction on what [a court] may consider in imposing a
reduced sentence.” To be sure, we find more persuasive the
understanding that the district court believed Carr’s original
term of imprisonment to remain appropriate, and so decided,
as an exercise of its broad discretion, not to impose a lesser
term.
In any event, even if we found the district court's
reasoning ambiguous, Carr has the burden to convince us that
an abuse of discretion actually occurred. Garcia, 693 F.2d at
415. Identifying an ambiguous statement that could be read to
evince an abuse of discretion is not enough.
Carr, 823 F. App’x at 255.
V.
Regarding Batiste’s section 404 motion, the record before us reflects
a probation officer’s determination that, under the Fair Sentencing Act, as
made retroactive by the First Step Act, Batiste’s statutory mandatory
minimum sentence was reduced from 240 months to 120 months. No other
change was noted. A screening committee agreed that Batiste was eligible

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under section 404 of the First Step Act, but the government opposed any
reduction “in light of the career offender Guideline.”
Enrolling as Batiste’s counsel, the Federal Public Defender filed a
memorandum in support of the motion for reduction, arguing that a
reduction was warranted in light of Batiste’s post-sentencing conduct, “the
individualized circumstances of his case[,] and . . . the § 3553(a) sentencing
factors.” Acknowledging that his career offender guidelines range remained
unchanged, by virtue of Hegwood, Batiste argued that the district court
nevertheless had broad discretion to vary downward and requested that his
262-month sentence be reduced to the current statutory 120-month
mandatory minimum or time-served. Batiste argued that a 120-month
sentence was appropriate in light of his post-sentencing conduct, including
his work at the textile factory, development of trade skills to ensure success
upon release, genuine commitment to rehabilitation, and, according to him,
“extensive information demonstrating that he has learned from . . . his prior
mistakes and will not recidivate. . . .”; the fact that he would no longer qualify
as a career offender under the current Sentencing Guidelines; and other
relevant sentencing factors under § 3553(a), including his history and
characteristics, the nature of his non-violent drug offense, and the need to
avoid unwarranted sentencing disparities. He also requested that the district
court reduce his term of supervised release from 10 years to 8 years, which
he noted was the current statutory minimum term of supervised release.
The government conceded that Batiste was eligible for a potential
reduction under the First Step Act, with the applicable statutory penalty
range now 10 years to life imprisonment, rather than 20 years to life, and that
the court had discretion to reduce it. The government nevertheless requested
that the district court either deny the motion or limit any reduction,
considering Batiste’s criminal history and that his 262-month sentence was
within the unchanged career offender guidelines range. In considering

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whether and to what extent to reduce the defendant’s sentence, the
government agreed that the district court should consider the relevant
§ 3553(a) factors, along with any positive or negative post-sentencing
conduct in assessing whether to reduce the sentence. But, citing Hegwood,
the government maintained that the First Step Act did not allow the court to
revisit Batiste’s status as a career offender. The government also
acknowledged Batiste’s good conduct post-sentencing but concluded that
nothing in the record suggested that the original sentence was unwarranted
in light of Batiste’s criminal history. Specifically, the government
emphasized several points in the opposition memorandum that it submitted
to the district court, arguing that “these circumstances support a lengthy
sentence for a defendant who continually took part in criminal activity for
about thirteen years before being charged in the instant case:”
First, in light of Hegwood, Batiste remains a career
offender. The 2016 amendments to the Guidelines’ “crime of
violence” definition for career-offender purposes, which were
prompted by Johnson v. United States, 135 S. Ct. 2551 (2015),
were not made retroactive by the Sentencing Commission.
Second, Batiste accumulated eighteen criminal history points,
five more than needed to be placed in Category VI. Third,
many of his offenses reflect a disregard for the wellbeing of
others, [including hit and run and negligent injury; driving
while intoxicated; and aggravated flight from an officer.]
Fourth, Batiste failed to take advantage of lenient sentences,
probationary sentences, and parole supervision . . . ; [and],
when [he] committed [the] instant federal crime, he was on
state parole following release from prison for distributing
cocaine. Fifth, even if his conviction for aggravated flight from
an officer is no longer a crime of violence under the
[Sentencing] Guidelines, it nonetheless involved a volitional
refusal to stop a vehicle “under circumstances wherein human
life is endangered.” La. Rev. Stat. 14:108.1(C). Indeed, the
PSR reflected that Batiste forced another vehicle off the street
and almost struck a pedestrian who was walking her dog.

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Responding to the government’s criticism of Batiste’s assertion that
he would not be a career offender if sentenced today, Batiste argued to the
district court:
[T]hat point is directly relevant to several of the
[§3553(a)] sentencing factors—his history and characteristics,
the kinds of sentences available, policy statements and
amendments to the [Sentencing] Guidelines, and the need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.
It also is relevant to the [c]ourt’s consideration of the
underlying purposes of incarceration and, specifically, what
sentence will be “sufficient, but not greater than necessary” to
comply with those goals in [his] case. In other words, whether
[] Batiste is entitled to a recalculation of his Guidelines range
has no bearing on this [c]ourt’s ability to consider his current
career offender status in assessing the relevant § 3553(a)
factors—which the [g]overnment agrees the [c]ourt should
do—and determining an appropriate sentence reduction.
The district court denied Batiste’s motion. Although agreeing that
Batiste’s offense was a “covered offense” under the First Step Act, and the
120-month mandatory minimum applied, the court decided that a sentence
of 262 months, which was within the guidelines range of 262 to 327 months
of imprisonment, was appropriate.
On appeal, Batiste argues that (1) the district court misinterpreted
Hegwood as precluding consideration of the § 3553(a) factors during First
Step Act sentencings and preventing any downward departure or variance
from the guidelines range; (2) the district court failed to adequately explain
its sentencing decision; (3) the district court’s re-imposition of a 262-month
sentence resulted in a substantively unreasonable sentence; and (4) that the
district court failed to consider the guidelines range applicable to him if he
were sentenced today. Although Batiste notes his fourth issue is foreclosed
by Hegwood, he has raised it to preserve it for further review.

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No. 19-30927

A. Misinterpretation of Hegwood
Although acknowledging our decision in Hegwood—prohibiting a
“plenary resentencing” and any alteration of the relevant “legal landscape”
beyond the changes mandated by the Fair Sentencing Act—Batiste argues
that district courts are nevertheless required to consider the relevant
sentencing factors under § 3553(a) in deciding whether to reduce a
defendant’s sentence pursuant to section 404, and that the district court here
failed to do so. He contends that the district court instead misinterpreted
Hegwood as precluding consideration of the § 3553(a) factors, noting that the
district court did not mention those factors in its decision or otherwise
indicate that it considered them.
Batiste also argues that the district court misinterpreted Hegwood as
requiring the mandatory application of the career offender guidelines range.
In essence, he argues that the district court erroneously denied relief under
the First Step Act based on its inaccurate assumption that it lacked the
authority under Hegwood to vary downward below the unchanged guidelines
imprisonment range because the original sentence was at the bottom of that
guidelines range.
In the instant matter, the district court issued a six-page written order
and reasons in which it accurately describes Batiste’s request for a reduction
based on his post-sentencing conduct, the circumstances of the case, and the
§ 3553(a) sentencing factors. The district court’s ruling followed lengthy and
comprehensive briefing by the parties, including a reply memorandum from
Batiste, in which the parties’ arguments were thoroughly expressed and
analyzed. Significantly, in each of these submissions, there is no dispute
that—despite the “legal landscape” limits of Hegwood—the court should
consider all relevant § 3553(a) factors, including the defendant’s criminal
history, his post-conviction progress, and the sentencing options available to
the court.

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No. 19-30927

In its ruling, the district court stated that, in determining Batiste’s
sentence, it was “heeding the rule announced in Hegwood,” i.e., that it
“plac[e] itself in the time frame of the original sentencing, altering the
relevant legal landscape only by the changes mandated by the 2010 Fair
Sentencing Act.” Hegwood, 934 F.3d at 418. Denying Batiste’s request for a
sentence reduction, the district court explained its decision:
At the time of Batiste’s original sentencing, the
mandatory minimum was 240 months; however, the court
declined to sentence him to the mandatory minimum, instead
imposing a higher sentence, at the bottom of the Guidelines
range. While recognizing the interim changes in the law, and
acknowledging the progress Batiste appears to have made in
prison, the court observes that nothing has changed in the facts
that informed its original sentencing decision, including
Batiste’s criminal history and the fact that the predicate crime
of violence, aggravated flight from an officer, involved Batiste
forcing another vehicle off the street and almost striking a
pedestrian, clearly present[ed] a serious potential risk of
physical injury to another. See U.S.S.G. § 4B1.2(a)(2006).
Accordingly, the court, heeding the rule announced in
Hegwood, does not engage in a plenary resentencing, but
considers this sentence as if section two of the Fair Sentencing
Act of 2010 was in effect at the time of Batiste’s offense,
providing a 120 month statutory minimum for his crime. It does
not consider any other interim changes in the law, including the
revision to the career offender Guideline. Therefore, Batiste’s
Guideline Range is 262–327 months, and the court finds that a
sentence of 262 months is appropriate.
In its written ruling, the district court expressly acknowledges the
interim changes in the law, Hegwood, and Batiste’s progress. Significantly,
however, the court’s focus is on the facts informing its original sentencing
decision, particularly including Batiste’s criminal history and the serious risk
of physical injury presented by the crime of violence underlying Batiste’s

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No. 19-30927

career offender enhancement. The court acknowledges that it could have
imposed a lower sentence—the statutory minimum, rather than the bottom
of the guideline ranges—at Batiste’s original sentencing, but did not, and
emphasizes that nothing in those facts have changed.
Addressing Batiste’s criticism of the district court’s decision and
analysis, the government emphasizes that, while this court has not resolved
whether district courts must consider the § 3553(a) factors in section 404
proceedings, the written order reflects that the district court gave due
consideration to Batiste’s arguments in favor of a reduction in light of the
§ 3553(a) factors. The government also rejects Batiste’s argument that the
district court misinterpreted Hegwood, noting that the district court made no
statement indicating that it was required to apply a within-guidelines
sentence. As the court itself noted, the district judge had the opportunity to
depart at the time of the original sentence, subject to the statutory minimum,
but could not find a reason to do so. The government likewise emphasizes
that the district court did not suggest, in its November 2019 ruling, that it
wanted to reduce Batiste’s sentence below the career offender guidelines
range but thought itself legally barred from doing so.
The government’s observations are insightful and well-founded.
Indeed, we have never held that courts cannot grant relief under the First
Step Act where the Sentencing Guidelines imprisonment range remains
unchanged and the original sentence is within that range. In other words, we
have not held that a downward variance is not permitted in those
circumstances.
At any rate, we are not persuaded that any legal error occurred here in
the district court’s assessment of Batiste’s motion. We are not convinced
that the district court based its determination on an erroneous interpretation
of the First Step Act, Hegwood, or any of our other decisions interpreting the
statute. Instead, as we concluded in our recent decision in Carr, it is more

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No. 19-30927

plausible, on the record before us, that the district court, having evaluated all
pertinent factors, simply exercised its statutory discretion to deny the
motion. Furthermore, in Jackson, we found no abuse of discretion where the
original life sentence was within the current statutory range and the court
relied on the defendant’s criminal history and role in the offense in denying
a reduction. 945 F.3d at 321-22. We similarly find no abuse of discretion here.
B. Adequacy of Explanation
With respect to the adequacy of the district court’s reasons, Batiste
argues that the district court committed a significant procedural error by
failing to address his arguments in support of a reduced sentence of
imprisonment and failing to mention his request for a reduction of his term
of supervised release to the new statutory minimum term of eight years.
The government maintains that Batiste’s arguments regarding the
adequacy of the district court’s explanation of its ruling essentially amount
to a disagreement with the district court’s reasoning and, in any event, the
district court’s six-page written order, in which the court specifically noted
Batiste’s arguments, provides adequate reasons for its sentencing decision
relative to Batiste’s term of imprisonment. However, the government
concedes that the district court’s order did not address Batiste’s request for
a reduction of his term of supervised release and acknowledges that remand
may be appropriate.
On this record, we agree with the government’s assertion. As
discussed above, the basis of the district court’s ruling is aptly recounted in
its November 7, 2019 Order and Reasons. Accordingly, we reject Batiste’s
challenge to the sufficiency of the district court’s explanation of its denial of
Batiste’s requested reduction of his term of imprisonment. The district
court’s written order adequately reflects that it gave due consideration to
Batiste’s arguments in favor of a reduction of his sentence of imprisonment
based on the § 3553(a) factors and his post-conviction progress. In United

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No. 19-30927

States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009), we determined, in the
context of 18 U.S.C. § 3582(c)(2) motion, that the district court was not
required to provide reasons or explain its consideration of the § 3553(a)
factors, and that there was no abuse of discretion where the relevant
arguments were before the court when it made its resentencing
determination. On the record before us, we reach the same conclusion here.
However, as the parties note, the district court’s order did not address
Batiste’s request for a reduction of his term of supervised release. Batiste
was sentenced in 2007 to 10 years of supervised release, which was the
applicable minimum term of supervised release. Pursuant to the First Step
Act, the minimum term is now eight years.
The First Step Act eligibility information sheet did not mention the
term of supervised release, nor did any member of the screening committee
address the applicable term of supervised release. Nevertheless, Batiste’s
motion requested a reduction of the term, albeit without discussing the issue.
The government’s submission did not address the issue. Thus, on this
record, it is not clear whether the district court considered and implicitly
rejected Batiste’s request for a reduction of his term of supervised release, or
merely overlooked it. Accordingly, we will remand that issue to the district
court for consideration and disposition.
C. Substantive Reasonableness of Sentence
With respect to the substantive reasonableness of his sentence, Batiste
argues that the district court’s re-imposition of a 262-month sentence was
substantively unreasonable based on the totality of the circumstances of his
case, particularly his post-sentencing conduct, and represented a clear error
of judgment in balancing the § 3553(a) sentencing factors. The government
argues that this court should not conduct a substantive reasonableness review
of Batiste’s sentence. As noted by the government, we have held that the
bifurcated procedural soundness and substantive reasonableness review of

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No. 19-30927

sentencing decisions that is derived from United States v. Booker, 543 U.S.
220 (2005), and its progeny, is inapplicable in the context of § 3582(c)(2)
proceedings because they “do not constitute full resentencings.” See Evans,
587 F. 3d at 671–72.
Although we have noted some distinctions between First Step Act
sentence reduction motions and § 3582 motions, we also have found them
similar in other respects. Pertinent here, in adopting an abuse of discretion
standard of review for the discretionary component of a district court’s First
Step Act, section 404 determination, we analogized to the “abuse of
discretion” standard of review applicable to “decisions whether to reduce
sentences” pursuant to § 3582(c)(2). See Jackson, 945 F.3d at 322 and n.2.
A de novo standard of review likewise applies “to the extent the court’s
determination turns on the ‘meaning of a federal statute’ such as the [First
Step Act].” Jackson, 945 F.3d at 319 (quoting Hegwood, 934 F.3d at 417).
Given the foregoing, we similarly conclude the substantive reasonableness
standard does not apply here. And, as stated above, Batiste has not
demonstrated an abuse of discretion or legal error occurred.
D. Required Recalculation of Guidelines Range (foreclosed issue)
Batiste argues that the district court committed procedural error by
refusing to recalculate and apply the current non-career offender guidelines
range of 77 to 96 months imprisonment. The district court noted Batiste’s
argument, but, applying Hegwood, concluded that Batiste’s career offender
status is unchanged. Conceding that his argument is foreclosed by Hegwood,
Batiste raises the issue solely to preserve it for further review. Considering
Batiste’s concession and our decision in Hegwood, additional analysis of this
foreclosed issue is not required.

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No. 19-30927

VI.
As stated herein, we AFFIRM the district court’s denial of Batiste’s
motion seeking reduction of his sentence of imprisonment. Because it is not
apparent that the district court considered Batiste’s motion with respect to
his term of supervised release, we REMAND that aspect of this proceeding
to the district court for consideration and disposition.

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