RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0065p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 20-5755
v. │
│
│
LAZELLE MAXWELL, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 2:09-cr-00033-2—Danny C. Reeves, District Judge.
Decided and Filed: March 19, 2021
Before: GUY, SUTTON, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Alison K. Guernsey, UNIVERSITY OF IOWA COLLEGE OF LAW, Iowa City,
Iowa, for Appellant. Charles P. Wisdom, Jr., John Patrick Grant, UNITED STATES
ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. Henry A. Martin, Michael C.
Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, Stephen Ross
Johnson, RITCHIE, DILLARD, DAVIES & JOHNSON, PC, Knoxville, Tennessee, Elizabeth B.
Ford, Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
INC., Knoxville, Tennessee, for Amici Curiae.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Lazelle Maxwell moved for a discretionary sentence reduction
under the First Step Act. The district court declined Maxwell’s request, opting to leave his
No. 20-5755 United States v. Maxwell Page 2
thirty-year sentence in place. Maxwell contends that the court abused its discretion. It did not,
and we affirm.
I.
In 2008, a federal grand jury in Lexington, Kentucky indicted Lazelle Maxwell for
conspiring to distribute crack cocaine and heroin. See 21 U.S.C. § 846. A jury found Maxwell
guilty of both counts.
In sentencing Maxwell, the district court accurately determined that the crack-cocaine
offense at the time generated a statutory range of 20 years to life and that the heroin offense
generated a range of 10 years to life, 21 U.S.C. § 841(b)(1)(A)–(B). Under the 2009 edition of
the guidelines, the district court treated Maxwell as a career offender and calculated a
discretionary guidelines range of 30 years to life. U.S.S.G. § 4B1.1. It sentenced Maxwell to 30
years.
While Maxwell’s direct appeal was pending, Congress enacted the Fair Sentencing Act of
2010. In an effort to increase parity between the sentences for crack and powder cocaine
offenses, Congress increased the quantity of crack cocaine needed to trigger a ten-year
mandatory minimum sentence from 50 grams to 280 grams. Fair Sentencing Act of 2010, Pub.
L. No. 111-220, § 2(a)(1), 124 Stat. 2372, 2372 (2010) (amending 21 U.S.C. § 841(b)(1)(A)(iii)).
But the change did not help Maxwell because it did not apply to sentences imposed before the
Act. See United States v. Blewett, 746 F.3d 647, 650 (6th Cir. 2013) (en banc).
In appealing his conviction and sentence, Maxwell sought relief on the grounds that his
pre-trial identification should have been suppressed, that the subsequent in-court identifications
should not have been permitted, and that insufficient evidence linked him to the crime. Maxwell
and his co-defendant also argued that their sentences were substantively unreasonable. Each
claim fell short. United States v. Shields, 415 F. App’x 692, 704–05 (6th Cir. 2011).
Maxwell sought collateral relief on ineffective-assistance-of-counsel grounds. See 28
U.S.C. § 2255. Although the district court denied the motion, we ruled that his trial attorney
violated Maxwell’s Sixth Amendment right to counsel when he failed to argue that the two
No. 20-5755 United States v. Maxwell Page 3
conspiracy counts were multiplicitous. Maxwell v. United States, 617 F. App’x 470, 472–73 (6th
Cir. 2015).
On remand, the district court vacated Maxwell’s heroin conviction and imposed a
thirty-year sentence on the cocaine conviction alone, leaving his total sentence unchanged. We
affirmed. United States v. Maxwell, 678 F. App’x 395, 397 (6th Cir. 2017).
In 2018, Congress enacted the First Step Act, which empowers district courts to lower
sentences imposed for crack-cocaine offenses “as if” the 2010 Fair Sentencing Act (and its
lowering of the sentence for this cocaine offense) had been the law during the original sentencing
hearing. First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018).
Maxwell mailed a one-page letter to the district court, asking about relief under the First Step
Act. The district court construed the letter as a request for relief under the Act and denied it.
United States v. Maxwell, No. CR 2:09-033-DCR, 2019 WL 1320045, at *4–5 (E.D. Ky. Mar.
22, 2019). We reversed the ruling on the ground that Maxwell sought appointment of counsel,
not a merits review, at that point in the case. United States v. Maxwell, 800 F. App’x 373, 376
(6th Cir. 2020).
On remand, and with the assistance of counsel, Maxwell moved for a sentence reduction
under the First Step Act. The district court denied his motion and left the thirty-year sentence in
place. United States v. Maxwell, No. CR 2:09-033-DCR, 2020 WL 3472913, at *4 (E.D. Ky.
June 25, 2020).
II.
The appeal raises two questions: Does the First Step Act demand a plenary resentencing
of a defendant that accounts for all changes in the law since his original sentence? Even if that is
not the case, does the Act permit a district court in its discretion to consider intervening legal
developments, such as changes in the career-offender guidelines, in determining the extent of
any sentence reduction?
No. 20-5755 United States v. Maxwell Page 4
A.
The text of the legislation goes a long way to answering the first question. The First Step
Act says in pertinent part:
A court that imposed a sentence for a covered offense may, on motion of the
defendant, . . . impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act . . . were in effect at the time the covered offense was committed.
First Step Act, § 404(b). A “covered offense” amounts to one affected by the former disparity
between sentences imposed for crack and powder cocaine offenses—what the Act refers to as a
“Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the
Fair Sentencing Act . . . that was committed before August 3, 2010.” Id. § 404(a). The upshot is
that the Act gives a district court authority to reduce a defendant’s sentence retroactively to
account for the changes established by the Fair Sentencing Act. But that authority is
discretionary. “Nothing” in the Act “shall be construed to require a court to reduce any
sentence.” Id. § 404(c).
With this legislation, Congress created an exception to the conventional rule that a court
“may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). An
exception to that rule says that a “court may modify an imposed term of imprisonment to the
extent otherwise expressly permitted by statute.” Id. § 3582(c)(1)(B). Taken together, § 3582(c)
and the First Step Act “expressly permitted” the district court to lower Maxwell’s sentence in its
discretion.
None of this seems to divide the United States and Maxwell. What separates them is a
disagreement over what the district court must do before making that decision. As Maxwell sees
it, the district court must engage in a plenary resentencing, one that recalculates the advisory
guidelines range according to the law at the time of the request, here the law in 2020. In
Maxwell’s case, that new calculation would have accounted for subsequent changes in other
areas of the law since his 2010 sentencing, including changes to his career-offender designation.
Efforts to rewrite the past are not easy. And we appreciate the appeal of Maxwell’s
argument that we should account for the present in redoing the past. But that is not what the
No. 20-5755 United States v. Maxwell Page 5
First Step Act requires, at least not at the outset when determining the guidelines range that will
form the basis for the reduced sentence. It tells the court to alter just one variable in the original
sentence, not all variables. It asks the court to sentence Maxwell “as if” the crack-cocaine
sentencing range had been reduced under the Fair Sentencing Act of 2010, not as if other
changes had been made to sentencing law in the intervening years.
We have considerable company in following the relevant language—the Act’s “as if”
directive and § 3582(c)’s prohibition on modifying sentences unless “expressly permitted”—to
its natural end. Several circuits have rejected the idea that a First Step Act request requires the
trial court to engage in a plenary resentencing hearing. From their vantage point, the district
court looks to the law as it existed at the time the defendant committed the offense, save for one
change: the Fair Sentencing Act’s amendments. That’s the reasoning of the Ninth Circuit:
“Because the First Step Act asks the court to consider a counterfactual situation where only a
single variable is altered, it does not authorize the district court to consider other legal changes
that may have occurred after the defendant committed the offense.” United States v. Kelley,
962 F.3d 470, 475 (9th Cir. 2020) (refusing to account for changes in career-offender
precedents). And the reasoning of the Fifth Circuit: “Congress did not intend that other changes
were to be made as if they too were in effect at the time of the offense.” United States v.
Hegwood, 934 F.3d 414, 418 (5th Cir. 2019). And the reasoning of the Eleventh Circuit: “[T]he
district court . . . is not free to . . . reduce the defendant’s sentence on the covered offense based
on changes in the law beyond those mandated by sections 2 and 3 [of the Fair Sentencing Act].”
United States v. Denson, 963 F.3d 1080, 1089 (11th Cir. 2020). And the reasoning of the Second
Circuit: “We therefore hold that the First Step Act does not entail a plenary resentencing, and
that it does not obligate a district court to recalculate an eligible defendant’s Guidelines range,
except for those changes that flow from Sections 2 and 3 of the Fair Sentencing Act of 2010,
when considering as a discretionary matter whether (or by how much) to grant a sentence
reduction.” United States v. Moore, 975 F.3d 84, 92 (2d Cir. 2020). Under this approach, there
is no requirement at the outset to account for intervening legal developments in recalculating the
guidelines.
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We take just one circuit, the Fourth Circuit, to require district courts to engage in a
plenary resentencing under the First Step Act that must account for all changes in law since the
original sentencing, not just the changes established by the Fair Sentencing Act. In a divided
decision, it ruled that the district court “should recalculate [the defendant’s] Guidelines range
without the career-offender enhancement” and should account for all intervening legal
developments in making the new calculation. United States v. Chambers, 956 F.3d 667, 675 (4th
Cir. 2020). But see id. at 676 (Rushing, J., dissenting) (“Section 404 . . . permits a district court
to reduce a final sentence to account for the statutory changes wrought by Sections 2 and 3 of the
Fair Sentencing Act. It does not expressly permit a district court to reduce a sentence based on
any other intervening changes in the law.”).
Maxwell insists that we have already taken sides in this debate and that we embraced the
Fourth Circuit’s approach in United States v. Boulding, 960 F.3d 774 (6th Cir. 2020). But that is
not true. Boulding does not hold, or for that matter say, that district courts must engage in a
plenary recalculation of the guidelines range at the outset, requiring the court to redetermine the
guidelines range based on all intervening legal developments, not just passage of the Fair
Sentencing Act. Rather, because Boulding’s original guidelines range was dictated by the
statutory mandatory minimum sentence of life in prison, it was the Fair Sentencing Act, not other
intervening legal developments, that required a recalculation of an amended guidelines range.
Id. at 776–78. Boulding no doubt speaks to a court’s discretion to consider intervening legal
developments when responding to a petition under the First Step Act, id. at 784, a point to which
we will return in a moment. But it does not require a plenary resentencing, an approach
consistent with decisions before and after it. In United States v. Foreman, decided before
Boulding, we observed that the defendant’s career-offender argument “presupposes a plenary
resentencing and career-offender determination to which he was never entitled.” 958 F.3d 506,
515 (6th Cir. 2020). We said the same thing in Smith. United States v. Smith, 958 F.3d 494, 499
n.3 (6th Cir. 2020) (noting that the district court did not abuse its discretion in declining to
consider other intervening legal developments in ruling on a First Step Act motion).
No. 20-5755 United States v. Maxwell Page 7
B.
To say that the First Step Act does not require plenary resentencing hearings is not to say
that it prohibits trial judges from considering intervening legal and factual developments in
handling First Step Act requests. The Act’s “as if” directive tells us some things, but not all
things, about how to handle these petitions and about the extent to which a sentencing judge
must separate the present from the past in ruling on these motions. A nagging question remains:
How could a district court exercise its discretion in deciding whether to make a First Step Act
reduction without considering the § 3553(a) factors? And if a court may consider these factors in
making that decision, why can’t it account for future dangerousness and up-to-date notions about
the risk of recidivism of this defendant, including his career-offender status under the law today?
That indeed seems to be the line our cases have drawn. While they do not require district
courts to conduct plenary resentencing hearings in response to a petition under the First Step Act,
they permit courts to consider subsequent developments in deciding whether to modify the
original sentence and, if so, in deciding by how much. As we put it in United States v. Ware:
Any “consideration of the impact that Apprendi would have had on [the defendant’s] statutory
sentencing range is a factor that the district court may consider when deciding whether, in its
discretion, to grant relief.” 964 F.3d 482, 488 (6th Cir. 2020). We said something similar in
Foreman. Even as we noted that the defendant’s career-offender argument “presupposes a
plenary resentencing and career-offender determination to which he was never entitled,” we
intimated that the court could consider this intervening development in deciding how to exercise
its discretion. Foreman, 958 F.3d at 515 & n.5. So too in United States v. Lawson: When
“deciding whether to grant a defendant’s motion under the First Step Act, the district court may
consider—as simply a ‘factor’ under 18 U.S.C. § 3553—that the defendant was sentenced based
in part on what would now be considered a legal mistake.” 824 F. App’x 411, 412 (6th Cir.
2020). In drawing this line, we have permitted consideration of a defendant’s conduct in prison,
e.g., United States v. Williams, 972 F.3d 815, 817 (6th Cir. 2020); United States v. Allen,
956 F.3d 355, 357–58 (6th Cir. 2020), as well as changes in our precedents, Ware, 964 F.3d at
488–89; see also United States v. Richardson, 960 F.3d 761, 765 (6th Cir. 2020) (noting that the
district court considered “the defendant’s history and characteristics (including his
No. 20-5755 United States v. Maxwell Page 8
post-incarceration conduct)” when deciding whether to grant relief); United States v. Ruffin,
978 F.3d 1000, 1009 (6th Cir. 2020) (noting that the district court “pointed out how prison
authorities had disciplined Ruffin ‘as recently as July 2019 for possessing an unauthorized item
and being insolent to staff’”); United States v. Martin, 817 F. App’x 180, 183 (6th Cir. 2020)
(“The district court is permitted to consider post-conviction conduct, such as Martin’s good
behavior in the Bureau of Prisons and the fact that Martin no longer qualifies as a career
offender.”); United States v. Butler, 805 F. App’x 365, 369 (6th Cir. 2020) (noting that “the
district court considered some § 3553(a) factors and some of his post-conviction rehabilitation
efforts”).
Most other circuits follow a similar approach. The Second Circuit divides First Step Act
petitions into two steps. The district court initially should recalculate the guidelines range using
only the First Step Act’s amendments and not any other changes since the defendant’s original
sentence. In its words: The Act “issues no directive to allow re-litigation of other Guidelines
issues—whether factual or legal—which are unrelated to the retroactive application of
the . . . Act.” Moore, 975 F.3d at 91. This threshold recalculation thus does not account for
other developments, including intervening career-offender decisions. Id. at 89–92. After that,
however, the Second Circuit allows district courts, in exercising their discretion under the Act, to
consider intervening precedential and factual developments in balancing the § 3553(a) factors.
Id. at 92 n.36 (“We hold only that the First Step Act does not obligate a district court to consider
post-sentencing developments. We note, however, that a district court retains discretion to
decide what factors are relevant as it determines whether and to what extent to reduce a
sentence.”); see also United States v. Ortiz, 832 F. App’x 715, 718 (2d Cir. 2020).
In considering a criminal defendant’s dangerousness to the community, one of the
§ 3553(a) factors that a district court may balance in handling a First Step Act request, the
Seventh Circuit allows the court to look at the point in real time. Thus: “[T]oday’s Guidelines
may reflect updated views about the seriousness of a defendant’s offense or criminal history. So,
a defendant may . . . present evidence of his post-sentencing conduct in support of a reduced
sentence. And a court may look to § 3553(a)’s familiar framework when assessing whether to
impose a reduced sentence.” United States v. Shaw, 957 F.3d 734, 742 (7th Cir. 2020).
No. 20-5755 United States v. Maxwell Page 9
The Tenth Circuit likewise notes that a trial court’s decision to recalculate the range to
account for other changes in the law is discretionary: The First Step Act “gives district courts
discretion to reconsider whether the defendant would still be designated as a career offender in
light of ‘subsequent decisional law that clarifies (not amends) the related career offender
provision at issue.’” United States v. Robertson, No. 20-6014, 2020 WL 7333449, at *2 (10th
Cir. Dec. 14, 2020) (quotation omitted); see also United States v. Crisp, No. 20-5040, 2021 WL
508492, at *2 (10th Cir. Feb. 11, 2021). And it permits this approach even after determining that
a “correct Guideline range calculation is paramount, and the district court can use all the
resources available to it to make that calculation.” United States v. Brown, 974 F.3d 1137, 1145
(10th Cir. 2020); see also United States v. Moore, 963 F.3d 725, 727 (8th Cir. 2020) (“When
reviewing a section 404 petition, a district court may, but need not, consider the section 3553
factors.”).
All told, our decisions and most of our sister circuits permit defendants to raise these
intervening developments, such as changes to the career-offender guidelines, as grounds for
reducing a sentence, and they permit (but do not require) district courts to consider these
developments in balancing the § 3553(a) factors and in deciding whether to modify the original
sentence.
One might fairly ask what difference all of this makes. If a court ultimately may consider
intervening legal developments, why does it make a difference whether the court considers them
through a plenary resentencing or later? The key impact is that a court, in addressing these
arguments by a defendant, has discretion not to recalculate the guidelines to account for
intervening legal developments. Given the First Step Act’s goal of lessening undue disparities in
criminal sentencing, a court could reasonably adopt the position that allowing inmates who
qualify for resentencing to benefit from other changes in the legal landscape cuts against that
laudable aim by denying this same benefit to individuals convicted of uncovered offenses.
That’s the thrust of our decision in Ware. The district court in that case, we held, did not abuse
its discretion when it declined to reduce a sentence because it “remained concerned about
sentencing disparities, as other defendants who were similarly sentenced for powder-cocaine
offenses . . . could not benefit from retroactive application” of intervening case law. Ware, 964
No. 20-5755 United States v. Maxwell Page 10
F.3d at 486. One last point: We need not decide today whether the First Step Act permits a
district court to modify a sentence below the changes ushered in by the Fair Sentencing Act.
C.
Gauged by this measuring stick, the district court’s decision should be affirmed. The
court first deemed Maxwell eligible for relief under the Act. It next calculated Maxwell’s
sentencing range as the law existed at the time of his original offense, accounting for the new
variable created by the Fair Sentencing Act. This new range reduced Maxwell’s mandatory
minimum from 20 to 10 years.
The court next acknowledged Maxwell’s argument that his guidelines range would
be even lower today thanks to intervening changes affecting his career-offender status.
It recognized its discretion to consider Maxwell’s sentencing range under the 2018 edition of the
guidelines when it weighed the § 3553(a) factors. And it said that it would consider “the factors
outlined in 18 U.S.C. § 3553(a), including the defendant’s amended sentencing guidelines range,
and any relevant post-sentencing conduct.” R.383 at 4.
Operating within its broad discretion, the court considered and rejected each of
Maxwell’s arguments in support of a reduced sentence. It weighed the severity of Maxwell’s
criminal conduct along with his leadership role in the conspiracy, criminal history, and likeliness
of recidivism. It balanced those factors against his steps toward rehabilitation, completion of
educational courses, and the lack of any prison incidents. That balancing led the court to stick
with a thirty-year sentence. That was not an abuse of discretion on this record. As we have held
before, a district court could reasonably reject reliance on later legal changes unrelated to the
First Step Act out of “concern regarding disparities with other similarly situated defendants.”
Ware, 964 F.3d at 489.
Contrary to Maxwell’s claims, the district court adequately considered Maxwell’s
likelihood of recidivism, granted sufficient weight to his post-sentence rehabilitation, and did not
need to explicitly address Maxwell’s arguments that he would not be a danger to the community
if released given his age and his health struggles. The court noted that Maxwell did not have any
serious incidents while in prison and that he had “completed various educational courses.”
No. 20-5755 United States v. Maxwell Page 11
R.383 at 8. And it commended Maxwell for taking “steps toward rehabilitation.” Id. But in
balancing these considerations, the court found that Maxwell’s “efforts d[id] not warrant a
sentence reduction when considered in conjunction with the other factors.” Id. The court found
that Maxwell was a likely recidivist, as he “had been involved in serious criminal activity for the
majority of his adult life,” and his “long pattern of criminal conduct exhibits a danger to the
public and a lack of respect for the law.” Id. at 7. It is clear that the court reasoned through
Maxwell’s arguments and acted well within its discretion in concluding that “a sentence of
360 months’ imprisonment remains sufficient, but not greater than necessary, to meet all of the
goals and objectives of 18 U.S.C. § 3553.” Id. at 8. The law does not require courts to expressly
rebut each argument. See United States v. Coleman, 835 F.3d 606, 616 (6th Cir. 2016); United
States v. Collington, 461 F.3d 805, 809 (6th Cir. 2006). For all of these reasons, no error,
whether procedural or substantive, occurred when the district court denied Maxwell’s motion for
a discretionary sentence reduction under the First Step Act.
We affirm.