20-3157-cr
United States v. McGriff
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 28th day of March, two thousand twenty-two.
4
5 PRESENT: PIERRE N. LEVAL,
6 RAYMOND J. LOHIER, JR.,
7 BETH ROBINSON,
8 Circuit Judges.
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10 UNITED STATES OF AMERICA,
11
12 Appellee,
13
14 v. No. 20-3157-cr
15
16 KENNETH MCGRIFF,
17
18 Defendant-Appellant. ∗
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∗
The Clerk of Court is respectfully directed to amend the caption as set forth above.
1 FOR APPELLEE: Anna L. Karamigios, Saritha
2 Komatireddy, Assistant United
3 States Attorneys, for Breon S. Peace,
4 United States Attorney, Eastern
5 District of New York, Brooklyn, NY
6
7 FOR DEFENDANT-APPELLANT: Michael K. Bachrach, New York, NY
8
9 Appeal from an order of the United States District Court for the Eastern
10 District of New York (Frederic Block, Judge).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the cause is REMANDED to the District Court for further
13 proceedings consistent with this order.
14 Kenneth McGriff appeals the July 10, 2020 order of the United States
15 District Court for the Eastern District of New York (Block, J.) denying his motion
16 for a reduction of sentence under § 404(b) of the First Step Act, Pub. L. No. 115–
17 391, 132 Stat. 5194 (2018). McGriff was convicted in 2007 of racketeering;
18 racketeering conspiracy; two counts of murder-for-hire and conspiracy to
19 commit murder-for-hire; conspiracy to distribute heroin, cocaine, and cocaine
20 base; distribution of heroin, cocaine, and cocaine base; and two counts of
21 conspiring to engage in, and engaging in, unlawful money transactions. The
2
1 District Court sentenced McGriff to eight life sentences to be served concurrently,
2 including a life sentence on Count 14 for possession with intent to distribute of
3 500 grams or more of cocaine, 50 grams or more of crack cocaine, and an
4 unspecified amount of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and
5 (b)(1)(B). 1 In June 2020 McGriff, pro se, moved for a reduced sentence pursuant
6 to § 404(b) of the First Step Act. The District Court denied the motion. We
7 assume the parties’ familiarity with the underlying facts and the record of prior
8 proceedings, to which we refer only as necessary to explain our decision to
9 remand.
10 In 2010 Congress enacted the Fair Sentencing Act, which amended 21
11 U.S.C. § 841(b)(1), and, as relevant to this appeal, increased the threshold
12 quantity required to trigger a 10-year mandatory minimum and a maximum
13 sentence of life from 50 grams to 280 grams of cocaine base. Pub. L. No. 111–
14 220, § 2, 124 Stat. 2372, 2372 (2010). It also set the mandatory minimum sentence
15 for distribution of between 28 and 280 grams of cocaine base at 5 years, with a
1 McGriff also received two concurrent sentences of ten years for conspiring to engage
in, and engaging in, unlawful money transactions.
3
1 maximum sentence of 40 years’ imprisonment. Id. “However, the Fair
2 Sentencing Act did not apply retroactively to defendants sentenced before the
3 Act became effective.” United States v. Martin, 974 F.3d 124, 131 (2d Cir. 2020).
4 In 2018 Congress passed the First Step Act, Pub. L. No. 115–391, 132 Stat. 5194
5 (2018). Section 404(b) of the First Step Act authorizes the sentencing court to
6 reduce the sentences of defendants who were previously sentenced pursuant to
7 provisions of 21 U.S.C. § 841 that were amended by sections 2 and 3 of the Fair
8 Sentencing Act. Specifically, as relevant here, Section 404(b) permits a district
9 court, on a motion from the defendant, to impose a reduced sentence “as if
10 sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time
11 the covered offense was committed.” 132 Stat. at 5222.
12 “We typically review the denial of a motion for a discretionary sentence
13 reduction for abuse of discretion.” United States v. Moore, 975 F.3d 84, 88 (2d
14 Cir. 2020) (quotation marks omitted). “A district court considering a motion for
15 a sentence reduction under the First Step Act must” first “determine whether the
16 defendant is eligible for a reduction,” and “[s]econd, if the defendant is eligible, .
17 . . determine whether, and to what extent, to exercise its discretion to reduce the
4
1 sentence.” Id. at 89. The District Court here determined that McGriff was
2 eligible for such a reduction under § 404 as to the life sentence imposed for
3 Count 14 because it was a “covered offense,” where “the term ‘covered offense’
4 means a violation of a Federal criminal statute, the statutory penalties for which
5 were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was
6 committed before August 3, 2010.” First Step Act § 404(a), 132 Stat. at 5222.
7 Having determined that McGriff was eligible for a reduced sentence, however,
8 the District Court declined to exercise its discretion to reduce his sentence.
9 McGriff argues that the District Court abused its discretion because it
10 failed to consider the 18 U.S.C. § 3553(a) factors in denying his motion. That
11 argument is foreclosed by our decision in United States v. Moyhernandez,
12 however, in which we held that “district courts are not bound to apply the §
13 3553(a) factors in every First Step Act case.” 5 F.4th 195, 205 (2d Cir. 2021). In
14 any event, the District Court discussed McGriff’s criminal history and the nature
15 of his offenses, thus indicating that it considered those two § 3553(a) factors, and
16 nothing in the record suggests that it failed to consider the remaining factors.
5
1 McGriff also argues that the District Court abused its discretion when it
2 separately determined that a reduction in McGriff’s sentence on Count 14 would
3 “be purely academic and make no practical difference” in his overall term of
4 incarceration, in light of his multiple other life sentences, which McGriff did not
5 challenge. App’x 101. We are not persuaded. “[A] district court retains
6 discretion to decide what factors are relevant as it determines whether and to
7 what extent to reduce a sentence.” Moore, 975 F.3d at 92 n.36. Guided by that
8 principle, we discern no abuse of discretion in the District Court’s consideration
9 of McGriff’s other life sentences as relevant here.
10 Nor was it an abuse of discretion to deny McGriff’s motion for
11 appointment of counsel. Motions under the First Step Act are governed by 18
12 U.S.C. § 3582(c)(1)(B), see United States v. Holloway, 956 F.3d 660, 666 (2d Cir.
13 2020), and there is no statutory right to counsel in § 3582(c) proceedings, see
14 United States v. Fleming, 5 F.4th 189, 193, 194 n.4 (2d Cir. 2021); United States v.
15 Reddick, 53 F.3d 462, 464–65 (2d Cir. 1995). The District Court was not
16 obligated to appoint counsel, and, under the circumstances of this case, it was
17 not an abuse of discretion for it to refuse to do so.
6
1 As noted, under the First Step Act a district court “may impose a reduced
2 sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the
3 time the covered offense was committed.” Moore, 975 F.3d at 91 (emphasis
4 added) (quotation marks omitted). “Through its ‘as if’ clause, all that § 404(b)
5 instructs a district court to do is to determine the impact of Sections 2 and 3 of
6 the Fair Sentencing Act.” Id. In this case, however, it is not clear that the
7 District Court calculated the new, reduced statutory maximum sentence that
8 applies after sections 2 and 3 the Fair Sentencing Act were made retroactive by
9 the First Step Act. We are unable to determine whether the District Court
10 considered McGriff’s motion in light of the reduced maximum. We therefore
11 remand to the District Court to explain the “impact” of the reduced statutory
12 maximum on its decision, and, if it did not previously consider the 40-year
13 reduced maximum, to reconsider McGriff’s motion for a reduced sentence in
14 light of that maximum. Id.
15
7
1 We have considered all of McGriff’s remaining arguments and conclude
2 that they are without merit. For the foregoing reasons, we REMAND to the
3 District Court for further proceedings consistent with this order.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk of Court
8