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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12717
________________________
D.C. Docket No. 9:06-cr-80115-KAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ORAL ROGER RUSSELL,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 15, 2021)
Before JORDAN, JILL PRYOR and BRANCH, Circuit Judges.
JILL PRYOR, Circuit Judge:
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Oral Russell, a federal prisoner, sent the district court a short letter asking
the court to appoint counsel to assist him in filing a motion for a sentence reduction
under the First Step Act of 2018. The district court construed Russell’s pro se
letter as a motion for a sentence reduction and, without giving Russell any
opportunity to be heard, denied the motion. Russell, still proceeding pro se, then
filed a motion for reconsideration, arguing that he was eligible for a sentence
reduction and the court should award him one. The district court denied that
motion as well. Russell, now represented by counsel, appeals the district court’s
orders. After careful review and with the benefit of oral argument, we vacate and
remand for further proceedings in the district court.
I.
A federal grand jury charged Russell with possessing with intent to
distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A). Before trial, the government gave notice that it intended to seek an
enhanced punishment because Russell previously had been convicted of a felony
drug offense. As a result, Russell faced a penalty range of 20 years to life. See
21 U.S.C. § 841(b)(1)(A) (2007).
After the government gave notice, Russell pled guilty. In the plea
agreement, Russell admitted that he was guilty of “knowing possession with intent
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to distribute at least 50 grams of cocaine base.” Doc. 27 at 1.1 The parties
attached to the plea agreement a “Factual Basis,” which they agreed was a “true
and accurate description of the relevant offense conduct” and “constitute[d] the
defendant’s relevant conduct under Section 1B1.3 of the Sentencing Guidelines.”
Id. According to the Factual Basis, if the case had gone to trial, the government
would have been able to prove beyond a reasonable doubt that law enforcement
officers seized a total of 441.2 grams of crack cocaine from Russell.
After the court accepted Russell’s guilty plea, a probation officer prepared a
presentence investigation report (“PSR”). The PSR recounted that the offense
involved 441.2 grams of crack cocaine. The PSR found that Russell qualified as a
career offender under the Sentencing Guidelines. See U.S.S.G. § 4B1.1. After
applying the career-offender enhancement, the PSR calculated his guidelines range
as 262 to 327 months’ imprisonment. The district court sentenced him to 262
months’ imprisonment.2 Russell did not appeal his sentence.
A few years after Russell was sentenced, Congress passed the Fair
Sentencing Act of 2010 to address disparities in sentences between offenses
involving crack cocaine and those involving powder cocaine. See Pub. L. No. 111-
220, 124 Stat. 2372 (2010); see also Kimbrough v. United States, 552 U.S. 85, 97–
1
“Doc.” numbers refer to the district court’s docket entries.
2
The transcript from the sentencing hearing was never filed with the district court and is
not in the record before us.
3
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100 (2007) (providing background on disparity). The Fair Sentencing Act
increased the quantity of crack cocaine necessary to trigger the highest statutory
penalties from 50 grams to 280 grams and the quantity of crack cocaine necessary
to trigger intermediate statutory penalties from 5 grams to 28 grams. See Fair
Sentencing Act § 2; 21 U.S.C § 841(b)(1)(A)(iii), (B)(iii). Until recently, the Fair
Sentencing Act’s reduced penalties applied only to defendants who were sentenced
on or after the Fair Sentencing Act’s effective date. Dorsey v. United States,
567 U.S. 260, 264 (2012).
In 2018, Congress passed the First Step Act, Pub. L. No. 115-391 § 404,
132 Stat. 5194, 5222 (2018), to give district courts the discretion “to apply
retroactively the reduced statutory penalties for crack-cocaine offenses in the Fair
Sentencing Act of 2010 to movants sentenced before those penalties became
effective.” United States v. Jones, 962 F.3d 1290, 1293 (11th Cir. 2020). Section
404 of the First Step Act authorizes a district court “that imposed a sentence for a
covered offense” to reduce a defendant’s sentence. First Step Act § 404(b). A
“covered offense” refers to 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.” Id. § 404(a). The First Step Act permits a district court to “impose a
reduced sentence as if” the Fair Sentencing Act had been “in effect at the time the
covered offense was committed.” Id. § 404(b). The First Step Act leaves to the
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district court’s discretion whether to reduce a sentence for an eligible defendant,
stating that “[n]othing in this section shall be construed to require a court to reduce
any sentence pursuant to this section.” Id. § 404(c).
After the First Step Act went into effect, Russell sent the district court a one-
page letter, asking the court to appoint counsel to assist him in filing a motion for a
sentence reduction under the First Step Act. Nothing in Russell’s short letter
addressed the merits of whether he was eligible for, or should be awarded, a
sentence reduction. The district court nonetheless construed Russell’s letter as a
motion requesting a sentence reduction under the First Step Act and directed the
government to file a response.
The government opposed any reduction to Russell’s sentence. If the Fair
Sentencing Act had been in effect at the time of Russell’s sentencing, the
government argued, it would have had “no impact” on Russell’s sentence because
the maximum penalty for an offense involving 441.2 grams of crack cocaine
remained the same under the Fair Sentencing Act. Doc. 63 at 2. The government
limited its response to arguing that Russell was ineligible for relief. It did not
address whether, if Russell were eligible for relief, the court should exercise its
discretion to reduce Russell’s sentence.3
3
The district court also directed the probation office to file a memorandum with the court
regarding the motion for a reduction of sentence. Although the probation office apparently
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In a two-paragraph order, the district court denied Russell a sentence
reduction. The court stated that Russell was “not eligible” for a sentence reduction
because his offense involved 452.2 grams of crack cocaine, 4 an offense involving
this drug quantity remained subject to the same penalty range after the Fair
Sentencing Act, and there was no change to his advisory guidelines range. Doc. 64
at 1. In addition, the district court said, even if Russell were eligible for a sentence
reduction under the First Step Act, after “considering the statutory factors set forth
in 18 U.S.C. § 3553(a),” the court would not exercise its discretion to grant a
sentence reduction. 5 Id.
Russell, still proceeding pro se, filed a motion for reconsideration. This
motion was his first opportunity to address his eligibility for a sentence reduction.
He argued that he was eligible because he had been charged with, and pled guilty
prepared a response, the response was never entered on the docket and thus is not part of the
record.
4
It appears that the district court intended to refer to the drug quantity that was admitted
in the plea agreement and set forth in the PSR—441.2 grams of crack cocaine.
5
Section § 3553(a) states that a court should “impose a sentence sufficient, but not
greater than necessary” to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, afford adequate deterrence to criminal conduct, protect
the public from further crimes of the defendant, and provide the defendant with needed
educational or vocational training. 18 U.S.C. § 3553(a)(2). In imposing a sentence, a court also
should consider: the nature and circumstances of the offense, the history and characteristics of
the defendant, the kinds of sentences available, the sentencing range established under the
Sentencing Guidelines, any pertinent policy statement issued by the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)–(7).
6
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to, an offense involving 50 grams or more of crack cocaine, an offense for which
the Fair Sentencing Act changed the penalty range.
In addition, Russell urged the district court to exercise its discretion to award
a sentence reduction, saying that he had been rehabilitated while incarcerated. He
submitted records showing that during his 13 years of incarceration he had no
disciplinary infractions, participated in a program to assist inmates with special
needs, completed over 1,200 hours of GED coursework, and worked as a barber.
Prison officials described Russell as a “good role model to other inmates” who was
“responsible, reliable, and trustworthy.” Doc. 65 at 21.
The district court, in another short order, denied Russell’s motion for
reconsideration. The court observed that Russell had admitted in his factual
proffer that his offense involved 441.2 grams of crack cocaine. Given this drug
quantity, the court said, if Russell were indicted today, the government would have
alleged in the indictment that the offense involved an amount of crack cocaine
sufficient to trigger the same statutory penalty. The court did “not believe that
Congress intended to give Defendant and others similarly situated to get [sic] the
benefit of a sentence reduction.” Doc. 66 at 1.
After the district court denied the motion for reconsideration, an attorney
with the Federal Public Defender filed a motion for appointment of counsel,
seeking to represent Russell on appeal. The attorney explained that Russell’s
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eligibility for relief under the First Step Act raised a question of first impression
that had broad application and pointed out that Russell previously had requested
the assistance of counsel in seeking relief under the First Step Act. The district
court granted the motion, and Russell is represented by counsel on appeal.
II.
We review de novo whether a district court had the authority to modify a
term of imprisonment. Jones, 962 F.3d at 1296. We review a district court’s
denial of an eligible movant’s request for a reduced sentence under the First Step
Act for an abuse of discretion. Id.; United States v. Harris, 989 F.3d 908, 911–12
(11th Cir. 2021). Although our review of a district court’s decision whether to
exercise its discretion is deferential, it “is not simply a rubber stamp.” United
States v. Johnson, 877 F.3d 993, 997 (11th Cir. 2017) (internal quotation marks
omitted).
III.
The question before us is whether the district court abused its discretion
when, after construing Russell’s letter requesting counsel as a motion for a
sentence reduction, it refused to grant him a sentence reduction and then denied his
motion for reconsideration. A district court generally lacks the authority to
“modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).
Section 3582(c) describes narrow circumstances when a district court may modify
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a sentence, including when the modification is “expressly permitted by statute.”
Id. § 3582(c)(1)(B). The First Step Act expressly permits a district court to reduce
a sentence imposed for a covered offense under the Act. See First Step Act § 404.6
In Jones we announced the framework for reviewing a district court’s denial
of a sentence reduction under § 404 of the First Step Act. Applying this
framework here, we conclude that we must vacate and remand for further
proceedings because Russell is eligible for a sentence reduction under the First
Step Act, and we cannot tell whether the district court understood that it had the
authority to reduce his sentence.
A.
In Jones, we considered the appeals of four federal prisoners whose motions
for a reduction of sentence under § 404 had been denied in the district courts. See
962 F.3d at 1293. We explained that “[w]hen Congress enacted the First Step Act
of 2018, it granted district courts discretion to reduce the sentences of crack-
cocaine offenders in accordance with the amended penalties in the Fair Sentencing
Act.” Id. at 1297.
To be eligible for a reduction under § 404(b), a movant’s offense of
conviction must have been a “covered offense,” meaning a crack-cocaine offense
6
We express no view on whether § 404 of the First Step Act is self-executing—meaning
it operates on its own to permit a district court to reduce a movant’s sentence—or instead
operates through § 3582(c)(1)(B).
9
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that triggered the enhanced statutory penalties set forth in § 841(b)(1)(A)(iii) or
(B)(iii). Id. at 1301. To determine whether the offense of conviction is a covered
offense, a district court should consult the record, including the movant’s charging
document, the jury verdict or guilty plea, the sentencing record, and the final
judgment. Id. at 1300–01.
The government argued in Jones that to decide whether a defendant
committed a “covered offense,” a district court should consider the actual quantity
of crack cocaine involved in the movant’s violation based on a finding of drug
quantity anywhere in the record, “such as a finding that was necessary for
determining only relevant conduct under the Sentencing Guidelines.” Id. at 1301.
We rejected this argument as inconsistent with the statutory text. Id. Rather, we
explained, a district court should consider only whether the quantity of crack
cocaine satisfied the specific drug quantity elements in § 841—in other words,
whether his offense involved 50 grams or more of crack cocaine, triggering
§ 841(b)(1)(A)(iii), or between 5 and 50 grams, triggering § 841(b)(1)(B)(iii). Id.
We concluded that all four movants in Jones had covered offenses because they
were sentenced for offenses with penalties that were modified by the Fair
Sentencing Act. Id. at 1302–03.
Next, we explained that even if a movant was sentenced for a covered
offense, he was not necessarily eligible for a sentence reduction. Id. at 1303.
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Section 404(b) imposed the further requirement, that any reduction must be “as if
sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the
covered offense was committed.” Id. (emphasis added) (quoting First Step Act
§ 404(b)). Given this language, a district court cannot reduce a movant’s sentence
if the sentence is already equal to the lowest statutory penalty that would have been
available to him under the Fair Sentencing Act. Id. In determining what a
movant’s statutory penalty would have been if the Fair Sentencing Act had been in
effect when he committed his offense, we said, a district court is bound by a
previous drug-quantity finding when it could have been used to determine his
statutory penalty at the time of sentencing.7 Id. When a movant’s sentence is
already equal to the Fair Sentencing Act’s mandatory-minimum sentence, then his
sentence necessarily would have been the same had the Fair Sentencing Act been
in effect when he was sentenced. Thus, the First Step Act does not authorize the
district court to reduce his sentence. Id.
7
Applying this standard, whether a court can look at a drug-quantity finding made at
sentencing to determine what a movant’s statutory penalty range would have been under the Fair
Sentencing Act generally depends on whether the movant was sentenced before or after the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the
Supreme Court held that a drug-quantity finding that increases a defendant’s punishment must be
made by a jury based on a beyond-a-reasonable-doubt standard of proof. Id. at 490. Under
Jones, if a movant was sentenced before the Supreme Court’s decision in Apprendi, the court
generally can look to a drug-quantity finding made by the sentencing judge because that
determination was used to set the movant’s statutory penalty range. See Jones, 962 F.3d at 1302.
But if a movant was sentenced after Apprendi, the court generally cannot look to a drug quantity-
finding made at sentencing because that determination was made solely for the purpose of
identifying the movant’s relevant conduct under the Sentencing Guidelines, not for setting his
statutory penalty range. Id. at 1301–02.
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But even when a district court has “authority to reduce” a movant’s
sentence, it is “not required to do so.” Id. at 1304. A district court has “wide
latitude to determine whether and how to exercise [its] discretion in this context”
and may “consider all the relevant factors, including the statutory sentencing
factors” set forth in 18 U.S.C. § 3553(a). Id. In a deciding whether to grant a
sentence reduction, a court also may consider “previous findings of relevant
conduct,” including a drug-quantity finding made at the defendant’s sentencing.
Id. at 1301.
Applying this framework in Jones, we vacated and remanded the district
courts’ denials of two of the movants’ motions. For these movants, the district
courts had the authority to reduce their sentences under the First Step Act because
they were eligible for relief, but it was unclear whether the courts had recognized
that authority. Id. at 1304–05. Because it was ambiguous whether the district
courts had denied the movants’ motions on the erroneous ground that they were
ineligible for relief, we vacated and remanded for further consideration. Id. at
1305.
B.
We now apply the Jones framework to review the district court’s orders
denying Russell a sentence reduction. We conclude that the district court had the
authority to reduce Russell’s sentence because he had a conviction for a covered
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offense under the First Step Act. But the record is ambiguous as to whether the
district court understood that it had the authority to reduce Russell’s sentence, so
we must vacate the district court’s orders and remand for further proceedings.
1.
Under Jones, we begin our analysis by asking whether Russell—who pled
guilty to possessing with intent to distribute 50 grams or more of crack cocaine—is
eligible for relief under the First Step Act. In its brief on appeal, the government
initially argued that Russell is ineligible for relief. But after our decision in Jones,
the government conceded Russell’s eligibility for a sentence reduction under the
First Step Act.
Applying the two-part framework from Jones, we likewise conclude that
Russell is eligible. First, Jones makes clear that Russell’s offense—possessing
with intent to distribute 50 grams or more of crack cocaine—qualifies as a covered
offense. See Jones, 962 F.3d at 1303. Second, the record reflects that Russell has
not already been sentenced “as if” the Fair Sentencing Act had been in effect
because he did not receive the lowest statutory penalty available under the Fair
Sentencing Act for his offense.8 See id. (internal quotation marks omitted).
8
The parties disagree about what the lowest statutory penalty would have been if Russell
had been sentenced under the Fair Sentencing Act. Russell says that we should look to the
statutory minimum penalty for an offense involving 50 grams of crack cocaine, using the drug
quantity element of the offense to which he pled guilty. With this drug quantity and considering
Russell’s prior conviction for a felony drug offense, the minimum statutory penalty available
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2.
Although the “district court had the authority to reduce” Russell’s sentence
under the First Step Act, “it was not required to do so.” Jones, 962 F.3d at 1304.
The district court had “wide latitude” in deciding whether to exercise its discretion
to reduce Russell’s sentence and could consider a variety of factors, including the
statutory sentencing factors set forth in 18 U.S.C. § 3553(a). Id.; see Harris,
989 F.3d at 912.
The next step of our inquiry is to ask whether the district court abused its
discretion when it refused to grant Russell a sentence reduction. See Jones,
962 F.3d at 1304. Although our review of a district court’s decision whether to
exercise its discretion is deferential, it “is not simply a rubber stamp.” Johnson,
877 F.3d at 997 (internal quotation marks omitted). “A court must explain its
sentencing decisions adequately enough to allow for meaningful appellate review.
Else, it abuses it[s] discretion.” Id. (citing Gall v. United States, 552 U.S. 38, 50–
51 (2007)). “This principle applies not only when a court imposes a sentence, but
under the Fair Sentencing Act would have been 10 years’ imprisonment. See 21 U.S.C.
§ 841(b)(1)(B) (2011). The government says that we should look to the statutory penalty for an
offense involving 441.2 grams of crack cocaine—the drug quantity Russell admitted in the
factual proffer that was part of his plea agreement. With this drug quantity and Russell’s prior
conviction for a felony drug offense, the minimum statutory penalty available under the Fair
Sentencing Act would have been 20 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A) (2011).
But, as the parties concede, we need not resolve whether to use 50 grams or 441.2 grams
as the relevant drug quantity for purposes of determining whether Russell is eligible relief.
Under either approach, Russell is eligible for relief because his current sentence—262 months—
is longer than the minimum statutory penalty.
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also when it determines whether or not to reduce a defendant’s sentence” pursuant
to provisions like § 3582(c). Id. And as we noted above, when reviewing a district
court decision denying a sentence reduction, we must vacate and remand if the
record is ambiguous as to whether the court understood it had the authority to
reduce the movant’s sentence. Jones, 962 F.3d at 1304–05.
In this case, we must vacate and remand because the record is ambiguous as
to whether the district court understood its authority to reduce Russell’s sentence.
From the district court’s last order, the order denying Russell’s motion for
reconsideration, we cannot discern whether the district court denied a sentence
reduction based on a determination that Russell was ineligible for a sentence
reduction under the First Step Act or on a choice not to exercise its discretion
despite his eligibility. In that order, the district court explained that Russell had
admitted his offense involved 441.2 grams of crack cocaine, which meant that he
would have faced the same statutory penalties even if he had been indicted after
the Fair Sentencing Act went into effect. The court then stated that Congress did
not “intend[] to give Defendant and others similarly situated . . . the benefit of a
sentence reduction.” Doc. 66 at 1.
On the one hand, this language suggests the district court believed Russell
was ineligible for a sentence reduction under the First Step Act. It could be read as
saying Russell was ineligible because the First Step Act had not changed the
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penalty range for an offense involving 441.2 grams of crack cocaine. If this is
what the court meant, it was error because, as our decision in Jones made clear,
Russell was eligible for relief because he was convicted of a covered offense—
violating 18 U.S.C. § 841(b)(1)(A)—and did not receive the lowest statutory
penalty available under the Fair Sentencing Act for this offense. See Jones,
862 F.3d at 1303–04.
On the other hand, the order could be read as indicating that the district court
understood Russell was eligible for relief but declined to exercise its discretion
because the court wished to avoid unwarranted sentencing disparities between
similarly-situated defendants. If this is what the district court intended, we would
be obliged to conduct a different inquiry to determine whether the district court
abused its discretion. Because we cannot resolve this ambiguity, we must vacate
and remand to the district court. See id. at 1305.
The government argues remand is not required because we can look back to
the district court’s initial order to conclude that upon remand the court would
decline to exercise its discretion. In effect, the government says remand is
unnecessary because any error in the district court’s order on the motion for
reconsideration was harmless. We assume that remand would not be required if it
were futile because we could discern from the record that the district court would
decline to exercise its discretion to award a sentence reduction. See United States
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v. Hersh, 297 F.3d 1233, 1250–54 (11th Cir. 2002) (explaining that remand was
not required when district court erred in calculating defendant’s guidelines range
because any error was harmless given district court’s explanation that it would
impose the same sentence under the alternative guidelines calculation and the
court’s decision was reasonable). But we are not persuaded that we can rely on the
initial order to say that remand would be futile here because the order is inadequate
to allow meaningful appellate review of the district court’s decision not to exercise
its discretion.
When a district court determines whether or not to exercise its discretion to
reduce a defendant’s sentence, it must provide enough explanation to permit our
meaningful review. See Johnson, 877 F.3d at 997. Although detailed findings or
explanations are not required, a district court must “set forth enough to satisfy [an]
appellate court” that the district court “considered the parties’ arguments and ha[d]
a reasoned basis” for denying the reduction. Chavez-Mesa v. United States, 138 S.
Ct. 1959, 1966 (2018) (internal quotation marks omitted); see Johnson, 877 F.3d at
997 (explaining “there must be enough, in the record or the court’s order, to allow
for meaningful appellate review of its decision” declining to exercise its
discretion).
There is not enough here to permit meaningful appellate review of the
district court’s initial order. The court simply said, “[e]ven assuming Defendant is
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eligible for resentencing under the First Step Act of 2018, after considering the
statutory factors set forth in 18 U.S.C. § 3553(a), the Court would exercise its
discretion to deny Defendant a reduction in this sentence.” Doc. 64 at 1–2. And
we cannot discern from the record the basis for the district court’s decision not to
exercise its discretion. When the district court issued this order, the court had
before it nothing from the parties addressing whether the court should exercise its
discretion. Russell had merely sent the court a one-page letter requesting
appointed counsel to assist him in seeking a sentence reduction under the First Step
Act when the court sua sponte converted his request into a motion for a sentence
reduction.9 The government submitted a response to the construed motion
9
Regarding the district court’s decision to recharacterize Russell’s letter as a motion for a
sentence reduction, we recognize that a district court has an obligation to “look beyond the label
of a pro se inmate’s motion to determine if it is cognizable under a different statutory
framework” and, if so, recharacterize the motion based on the substance of the filing and the
relief sought. United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003). A district court
may recharacterize a pro se litigant’s motion to “create a better correspondence between the
substance of a pro se motion’s claim and its underlying legal basis.” Castro v. United States,
540 U.S. 375, 381–82 (2003); see also id. at 386 (Scalia, J., concurring) (stating that a district
court’s recharacterization of a pro se complaint “should certainly not occur in any situation
where there is a risk that the patronized litigant will be harmed rather than assisted by the court’s
intervention”).
We have serious concerns about the district court’s decision to recharacterize Russell’s
letter as a motion for a sentence reduction. Because Russell neither requested a sentence
reduction in his letter nor advanced any argument about why he should receive a sentence
reduction, correspondence between the letter and the district court’s treatment of it as a motion
for a sentence reduction is lacking. See Castro, 540 U.S. at 382 (majority opinion).
Our concurring colleague would vacate and remand on the ground that “[t]he district
court’s recharacterization decision harmed Russell” because the court recharacterized Russell’s
letter as a substantive motion for a sentence reduction without offering him the opportunity to
withdraw the motion or amend it to “provide substance for the arguments underlying the
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opposing any sentence reduction, but it addressed only Russell’s eligibility for
relief under the First Step Act, not whether, if Russell were eligible, the court
should exercise its discretion. So even assuming it would be appropriate to look
back to the initial order after the court’s ruling on the motion for reconsideration,
we cannot affirm based on the order because neither the order itself nor the record
sheds any light on the district court’s reasons for declining to exercise its
discretion.10
IV.
For the reasons set forth above, we vacate the district court’s orders denying
Russell a sentence reduction and remand for further proceedings.
VACATED AND REMANDED.
recharacterized motion.” Concurring Op. at 22. But we need not decide today whether the
district court’s orders should be vacated because the district court purported to rule on a motion
for a sentence reduction from Russell without giving him an opportunity to be heard. Instead, we
vacate and remand because the district court’s orders are inadequate to allow for meaningful
appellate review.
10
This conclusion is based on the record before us. We express no opinion about
whether we would reach the same result if, when the court denied the initial motion for a
sentence reduction, it had before it any argument from the parties about whether it should
exercise its decision. See United States v. Eggersdorf, 126 F.3d 1318, 1322–23 (11th Cir. 1997)
(affirming district court’s denial of motion for sentence reduction where government argued that
the court should not award a reduction due to the scope of the defendant’s criminal conduct and
criminal history—in effect arguing based on the § 3553(a) factors—and the court cited the
government’s opposition in denying the motion).
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BRANCH, Circuit Judge, concurring in the judgment:
I concur in the judgment because the district court erred and because we
should vacate the orders on appeal and remand for further proceedings. I disagree,
however, with the majority’s analysis of the district court’s recharacterization error
and so I write separately.
As a reminder, Russell initially sent the district court a short letter requesting
the court to appoint counsel to represent him in requesting a sentence reduction
under the First Step Act. Without warning Russell of the consequences of
recharacterization, receiving any argument from Russell concerning the merits of a
sentence reduction, or giving Russell the opportunity to amend or withdraw the
motion, the district court construed Russell’s letter as a motion requesting a
sentence reduction and ordered the government to respond. The government
argued in response that Russell was ineligible for a sentence reduction under the
First Step Act. The district court then denied the recharacterized motion for a
sentence reduction, finding that (1) Russell was ineligible for a sentence reduction
under the First Step Act, and (2) that even if Russell was eligible for a reduction,
“after considering the statutory factors set forth in 18 U.S.C. § 3553(a), the Court
would exercise its discretion to deny Defendant a reduction in his sentence.” 1
1
After the district court denied Russell’s recharacterized motion for a sentence
reduction, Russell filed a motion for reconsideration and presented arguments for the first time as
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While I agree, under the majority’s approach, that the district court’s first
conclusion—that Russell was ineligible for a sentence reduction—was clearly
wrong under United States v. Jones, 962 F.3d 1290 (11th Cir. 2020), I would not
reach the eligibility determination under Jones because I believe the district court
erred as a matter of law in recharacterizing Russell’s letter without any notification
or warning to Russell. Based on that initial error, I would remand this case for the
district court to reconsider Russell’s letter requesting counsel.2
District courts have discretion to recharacterize a pro se litigant’s motion to
“create a better correspondence between the substance of a pro se motion’s claim
and its underlying legal basis.” Castro v. United States, 540 U.S. 375, 381–82
(2003).3 But recharacterization “should certainly not occur in any situation where
there is a risk that the patronized litigant will be harmed rather than assisted by the
court’s intervention.” Castro, 540 U.S. at 386 (Scalia, J., concurring).
The district court’s recharacterization of Russell’s motion created two
problems.
to why he was eligible for—and deserved—a sentence reduction. The district court also denied
that motion, again finding Russell ineligible for a sentence reduction.
2
Although the majority has serious concerns about the district court’s recharacterization
decision, it would not decide the case on this basis.
3
District courts can also recharacterize a pro se litigant’s motion to “avoid an
unnecessary dismissal” or “avoid inappropriately stringent application of formal labeling
requirements.” Castro, 540 U.S. at 381.
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First, the recharacterization did not “create a better correspondence between
the substance” of Russell’s claim and “its underlying legal basis,” which is what
our precedent allows, and in some cases requires, district courts to do. Castro, 540
U.S. at 381–82; United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003)
(“Federal courts are obligated to look beyond the label of a pro se inmate’s motion
to determine if it is cognizable under a different statutory framework.”). In
reviewing Russell’s letter requesting counsel, I am not convinced it
“corresponded” to the underlying legal basis of a motion for a sentence reduction
under the First Step Act. The letter looks nothing like a motion requesting a
sentence reduction under the First Step Act. For example, the letter makes no
arguments as to why the district court should use its discretion to reduce Russell’s
sentence. Rather, the letter explains that Russell seeks counsel to help prepare
such a motion because the First Step Act made the Fair Sentencing Act retroactive
to prisoners like him.
Which brings me to the second—and more critical—problem caused by the
district court. The district court’s recharacterization decision harmed Russell
because it deprived Russell of his opportunity to either withdraw his motion or
provide substance for the arguments underlying the recharacterized motion. This
harm is significant because successive requests for a sentence reduction under the
First Step Act are generally not allowed, and, therefore, a defendant has only one
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opportunity to address why he should receive such a reduction. See Pub. L. No.
115-391 § 404(c), 132 Stat. 5194, 5222 (2018) (“No court shall entertain a motion
made under this section to reduce a sentence . . . 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.”). Accordingly, by
depriving Russell of his opportunity to withdraw his motion or provide arguments
in support of the recharacterized motion, the district court effectively denied
Russell his one and only opportunity to request a reduction.
Because of the consequences inherent in filing an initial motion to vacate a
sentence under 28 U.S.C. § 2255, the Supreme Court held in Castro that a litigant
would be relieved from the consequences of filing a first § 2255 motion if the
district court recharacterized a pro se motion requesting other relief as a § 2255
motion without “inform[ing] the litigant of its intent to recharacterize, warn[ing]
the litigant that the recharacterization will subject subsequent § 2255 motions to
the law’s ‘second or successive’ restrictions, and provid[ing] the litigant with an
opportunity to withdraw, or to amend, the filing.” Id. at 377, 383.
Because First Step Act motions for a sentence reduction carry similar
consequences to first § 2255 motions, the Court’s reasoning in Castro translates to
recharacterization decisions in the First Step Act context. While a movant is not
entitled to an opportunity to be heard before the district court denies his First Step
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Act motion, he should be given notice and warned of the consequences of the
recharacterization of his filing as a First Step Act motion because of the potential
prejudice that flows from that recharacterization. Russell was harmed, rather than
assisted, by the recharacterization, because he was not warned of the consequences
of filing a First Step Act motion or given the decision to withdraw or amend his
motion before the district court ruled on it.4
4
While Russell eventually made substantive arguments for a sentence reduction in his
motion for reconsideration, that opportunity did not cure the district court’s initial error of
recharacterizing his letter requesting counsel as a motion for a sentence reduction because the
recharacterization carried collateral consequences, Russell was not notified of the court’s intent
to recharacterize or warned of the consequences of recharacterization, and he was not given an
opportunity to withdraw or otherwise amend his motion. This harm is exacerbated because the
court completely ignored Russell’s request for counsel. If Russell had been warned of the
recharacterization and its consequences, he could have withdrawn his motion, sought counsel,
and eventually sought a sentence reduction with the benefit of counsel.
Russell was further harmed by the recharacterization decision because he was left to
make his substantive arguments only in a motion for reconsideration, and the grounds for
granting a motion for reconsideration are limited. Specifically, “a motion for reconsideration of
a district court order in a criminal action is not expressly authorized by the Federal Rules of
Criminal Procedure . . . .” United States v. Vicaria, 963 F.2d 1412, 1213 (11th Cir. 1992).
“Although no statute or rule expressly provides for the filing of a motion for reconsideration in
criminal cases, federal district courts necessarily have substantial discretion in ruling on motions
for reconsideration.” See United States v. Razz, 387 F. Supp. 3d 1397, 1402 (S.D. Fla. 2019)
(collecting cases). In using their discretion, district courts, including the Southern District of
Florida, “generally employ the standards underlying motions for reconsideration in civil cases.”
Id. (collecting cases). In civil cases, movants for reconsideration may only obtain relief in
certain specific circumstances and must show “‘extraordinary circumstances’ justifying the
reopening of a final judgment.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005); M.G. v. St. Lucie
Cnty. Sch. Bd., 741 F.3d 1260, 1262 (11th Cir. 2014). For example, reconsideration is justified
in civil cases when there is “(1) an intervening change in controlling law; (2) the availability of
new evidence; [or] (3) the need to correct clear error or prevent manifest injustice.” Razz, 387 F.
Supp. 3d at 1402 (quoting Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366,
1369 (S.D. Fla. 2002)).
While the district court’s order denying Russell’s motion for reconsideration does not
specifically address whether it held Russell to this heightened standard on reconsideration, the
existence of a heightened standard demonstrates that even though Russell was permitted to make
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For these reasons, I would hold that the district court abused its discretion in
recharacterizing Russell’s letter requesting counsel as a motion for a sentence
reduction. Consequently, I concur in the majority’s holding vacating and
remanding both of the district court’s orders in this case. Unlike the majority,
however, I would remand this case for the district court to consider Russell’s letter
requesting counsel. Russell then could choose to file a motion under the First Step
Act requesting a sentence reduction.
his merits arguments for the first time in his motion for reconsideration, he still suffered
prejudice because of the improper recharacterization.
25
United States v. Oral Roger Russell
Combined Opinion