NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 16, 2021
Decided November 24, 2021
Before
MICHAL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-1295
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 06 CR 324-22
KENNETH STARKS, John J. Tharp,
Defendant-Appellant. Judge.
ORDER
Kenneth Starks, a federal inmate sentenced in 2010 for conspiring to distribute
crack cocaine, appeals the denial of his motion for a reduced sentence under § 404 of the
First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194. On appeal, Starks argues the
district court erred when it: (1) concluded that defendants with prior sentence
reductions under 18 U.S.C. § 3582(c)(2) were ineligible for relief under the First Step
Act; (2) ruled that defendants with a plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C) were ineligible for relief under the First Step Act; and (3) decided
No. 21-1295 Page 2
it would deny relief even if Starks were eligible. The government agrees that Starks is
eligible for a sentence reduction, but it submits that the district court’s alternative,
discretionary denial was not an abuse of discretion.
The principle of party presentation generally restricts this court to the positions
that the parties take. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). So, we
work from the premise both parties urge, that Starks is eligible for relief, and we discuss
only the alternative, discretionary denial. Because the district court provided a well-
reasoned explanation of its discretionary denial, we affirm and need not address the
other two issues.
Background
In 2010, Starks pleaded guilty to conspiring with codefendants to distribute
drugs, including crack cocaine. See 21 U.S.C. § 846. He and the government reached an
agreement under Fed. R. Crim. P. 11(c)(1)(C): in exchange for Starks pleading guilty to
one count, the government would dismiss the other counts, and Starks’s sentence
would be 66% of the low end of the guidelines range or the statutory minimum
sentence (then 10 years), whichever was greater. The court accepted this agreement and
sentenced Starks under its terms to 237 months’ imprisonment (66% of the bottom of
the guidelines range).
Starks later received two sentence reductions based on retroactive changes to the
Sentencing Guidelines. First, in 2012, Starks’s sentence was reduced to 213 months in
prison under 18 U.S.C. § 3582(c)(2) based on Amendment 750, which lowered the
applicable guidelines range to reflect changes from the Fair Sentencing Act of 2010, Pub.
L. 111-220, 124 Stat. 2372. Then, in 2016, his sentence was reduced, again under
§ 3582(c)(2), to 172 months based on Amendment 782, which also lowered the
applicable range but for reasons unrelated to the Fair Sentencing Act.
In 2020, Starks requested a third sentence reduction, the subject of this appeal.
His request was based on § 404(b) of the First Step Act of 2018. This provision gives
district courts discretion to retroactively apply to eligible defendants the statutory
changes of the Fair Sentencing Act. The government opposed a discretionary reduction
based on the sentencing factors of 18 U.S.C. § 3553(a).
The district court denied Starks’s motion for a reduction. First, the court
questioned whether Starks was eligible. It asked whether a Fed. R. Crim. P. 11(c)(1)(C)
No. 21-1295 Page 3
plea agreement, which binds a sentencing court if accepted, affects a defendant’s
eligibility for a reduction. But the court did not decide that issue because it considered
Starks ineligible for a § 404 reduction for another reason. It read the First Step Act as
barring motions from defendants who had previously received sentencing reductions
under Amendment 750.
Even if Starks were eligible, the district court continued, it declined to exercise its
discretion to lower his sentence. Addressing the § 3553(a) sentencing factors, the court
noted that Starks’s offense involved a substantial quantity of drugs, Starks had an
extensive criminal history, and a further reduction would create disparate sentences
because his guidelines range and the applicable penalties had not changed. The court
also reasoned that, although Starks had a positive prison record, when it was viewed
against his past criminal conduct and offense of conviction, that record did not establish
that Starks’s risk of recidivism had abated.
Analysis
This court reviews for abuse of discretion the denial of an eligible defendant’s
motion under the First Step Act for sentencing relief. United States v. Sutton, 962 F.3d
979, 986 (7th Cir. 2020). Starks offers three arguments, but none persuades us that the
district court abused its discretion.
First, he argues the district court’s analysis of his ineligibility for relief influenced
its alternative, discretionary ruling because it uses some similar reasoning in both. But
the First Step Act does not prevent courts from considering the goals and purposes of
the Act in their discretionary analyses. See United States v. Corner, 967 F.3d 662, 666
(7th Cir. 2020). Nor does it prevent courts from considering the benefits of a Fed. R.
Crim. P. 11(c)(1)(C) plea agreement. See Hughes v. United States, 138 S. Ct. 1765, 1777
(2018) (analyzing a discretionary reduction under § 3582(c)(2)). And regardless, the
court explicitly assumed in its discretionary ruling that Starks was eligible for relief.
Therefore, the district court adequately separated the two analyses.
Second, he contends that, in its first reason for denying a reduction (no new
changes to the applicable penalties), the district court “seemed to believe that Section
404 only could be used to apply updated guidelines.” The court asked whether the
statutory penalties had changed, as it was obligated to do, see Corner, 967 F.3d at 665, or
the guidelines range had, and it noted that neither had changed. But the court also
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recognized that it could reduce his sentence anyway; it chose not to do so because of the
substantial quantity of drugs trafficked and other § 3553(a) factors.
Third, Starks maintains that in denying discretionary relief, the district court did
not sufficiently consider the sentencing factors under § 3553(a). We disagree. The court
thoroughly discussed the nature and seriousness of the offense (the large quantities of
various drugs), the applicable guidelines range, and the risk of disparate sentences from
a further reduction, which would drop Starks’s sentence to below the guidelines range.
See 18 U.S.C. § 3553(a)(1), (2), (4), (6). The court’s desire to adhere to the guidelines
range is sound, because “[s]entencing disparities are at their ebb when the Guidelines
are followed.” United States v. Bartlett, 567 F.3d 901, 907 (7th Cir. 2009). The district court
then properly contrasted those factors with Starks’s prison record. See United States v.
Shaw, 957 F.3d 734, 742 (7th Cir. 2020). Although it found that his prison record was
positive, it reasonably explained that his extensive criminal history (Category VI) and
the seriousness of his offense of conviction counterbalanced that record and justified
denying Starks’s request for a sentence reduction. Thus, in its alternative ruling, the
district court adequately explained why it denied relief.
AFFIRMED