United States v. Michael Palmer

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 28, 2022 Decided June 3, 2022

No. 20-3058

UNITED STATES OF AMERICA,
APPELLEE

v.

MICHAEL PALMER, ALSO KNOWN AS TONY, ALSO KNOWN AS
KNOT, ALSO KNOWN AS JAMES,
APPELLANT

Consolidated with 20-3060

Appeals from the United States District Court
for the District of Columbia
(No. 1:89-cr-00036-1)

Jonathan Zucker, appointed by the court, argued the cause
and filed the briefs for appellant.

Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb,
Nicholas P. Coleman, and Timothy R. Cahill, Assistant U.S.
Attorneys. Mark Hobel, Assistant U.S. Attorney, entered an
appearance.
 2

Before: HENDERSON and JACKSON*, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: In this
consolidated appeal, Michael Palmer mounts two challenges to
a life sentence for running a continuing criminal enterprise
(CCE) centered around crack cocaine distribution. See 21
U.S.C. § 848(b). In particular, Palmer appeals the district
court’s denials of his motions for relief under the First Step Act
of 2018 and 28 U.S.C. § 2255. After the district court issued its
First Step Act order, we decided United States v. White, 984
F.3d 76 (D.C. Cir. 2020), in which we elaborated on First Step
Act proceedings. Because it is unclear whether the district court
began from the correct statutory mandatory minimum sentence
in light of White, we remand the First Step Act appeal to the
district court for it to clarify the applicable baseline; and,
because the district court could change Palmer’s sentence on
remand, we hold the section 2255 appeal in abeyance for now.

I. BACKGROUND

A. STATUTORY BACKGROUND

As modified by the Anti-Drug Abuse Act of 1986, Pub. L.
No. 99-570, § 1253, 100 Stat. 3207, 3207-14 to 3207-15
(codified as amended at 21 U.S.C. § 848), a CCE offense
includes a felony violation of the federal drug laws that is part
of a series of drug-law violations undertaken in concert with
five or more other persons. See 21 U.S.C. § 848(c) (1988).1

* Circuit Judge Jackson was a member of the panel at the time
the case was argued but did not participate in this opinion.
 3

1
In 1989, when Palmer was sentenced, 21 U.S.C. § 848
provided, in relevant part:

(a) Penalties; forfeitures

Any person who engages in a continuing criminal
enterprise shall be sentenced to a term of imprisonment
which may not be less than 20 years and which may be
up to life imprisonment, to a fine not to exceed the greater
of that authorized in accordance with the provisions of
title 18 or $2,000,000 if the defendant is an
individual . . . , and to the forfeiture prescribed in section
853 of this title.

(b) Life imprisonment for engaging in continuing criminal
enterprise

Any person who engages in a continuing criminal
enterprise shall be imprisoned for life and fined in
accordance with subsection (a) of this section, if—

(1) such person is the principal administrator,
organizer, or leader of the enterprise or is one of
several such principal administrators, organizers,
or leaders; and

(2) (A) the violation referred to in [subsection (c)(1)]
of this section involved at least 300 times the
quantity of a substance described in subsection
841(b)(1)(B) of this title . . . .

(c) “Continuing criminal enterprise” defined

For purposes of subsection (a) of this section, a person
is engaged in a continuing criminal enterprise if—
 4
Although the original CCE statute included a ten-year
mandatory minimum, see Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub. L. No. 91-513, § 408,
84 Stat. 1236, 1265; see also Anti-Drug Abuse Act of 1988,
Pub. L. No. 100-690, § 6481(a), 102 Stat. 4181, 4382
(mandatory minimum in section 848(a) increased from ten to
twenty years), the Congress inserted the “Super CCE”
provision, mandating a life sentence if the offender is one of
the “principal administrators, organizers, or leaders” of the
enterprise and the underlying felony “involved at least 300
times the quantity of a substance described in” 21 U.S.C.
§ 841(b)(1)(B), see 21 U.S.C. § 848(b) (1988); see also United
States v. Williams-Davis, 90 F.3d 490, 510 (D.C. Cir. 1996)
(detailing genesis of Super CCE provision).

(1) he violates any provision of this subchapter or
subchapter II of this chapter the punishment for
which is a felony, and

(2) such violation is a part of a continuing series of
violations of this subchapter or subchapter II of
this chapter—

(A) which are undertaken by such person in
concert with five or more other persons with
respect to whom such person occupies a
position of organizer, a supervisory
position, or any other position of
management, and

(B) from which such person obtains substantial
income or resources.

21 U.S.C. § 848 (1988).
 5
Elsewhere in the Anti-Drug Abuse Act of 1986, the
Congress established a quantity-based sentencing regime that
punished crack cocaine offenses 100 times more harshly than
powder cocaine offenses. See § 1002, 100 Stat. at 3207–2 to
3207–4 (codified at 21 U.S.C. § 841(b)(1) (1988)). For
example, a conviction of possession of 5 grams of crack
cocaine with intent to distribute called for the same five-year
mandatory minimum prison sentence as a conviction of
possession of 500 grams of powder cocaine with intent to
distribute. See id.; Dorsey v. United States, 567 U.S. 260, 263–
64 (2012). Incorporating those quantities into the Super CCE
offense’s “300 times” threshold, the leader of a drug trafficking
operation could be convicted of the Super CCE offense based
on 1,500 grams of crack cocaine or 150,000 grams of powder
cocaine.2

Over the next two decades, the United States Sentencing
Commission (USSC or Commission) “and others in the law
enforcement community strongly criticized [the] Congress’
decision to set the crack-to-powder mandatory minimum ratio
at 100-to-1.” Dorsey, 567 U.S. at 268. “[A]lthough the
Commission thought that it was reasonable to conclude that
‘crack cocaine poses greater harms to society than does powder
cocaine,’” Terry v. United States, 141 S. Ct. 1858, 1861 (2021)
(quoting USSC, Special Report to the Congress: Cocaine and
Federal Sentencing Policy 195–97 (Feb. 1995) (1995 Report)),

2
In his section 2255 appeal, Palmer contends that his previous
counsel was ineffective for not arguing that the single, underlying
felony violation referenced in 21 U.S.C. § 848(c)(1)—not the series
of violations referenced in subsection (c)(2)—must involve 1,500
grams of crack cocaine to trigger the Super CCE provision. See
United States v. Atencio, 435 F.3d 1222, 1230–31 (10th Cir. 2006).
Because we do not reach the section 2255 appeal, we need not
address Palmer’s argument.
 6
the Commission determined that the 100-to-1 disparity was too
large because, inter alia, it overstated the comparative harms
of crack and powder cocaine, defeated the “‘proportionality’
goal” of punishing prolific drug traffickers more severely than
retail-level dealers and created a perception that the sentencing
regime was race-based because those convicted of crack
cocaine offenses were disproportionately black, Dorsey, 567
U.S. at 268–69 (citing Kimbrough v. United States, 552 U.S.
85, 97–98 (2007); 1995 Report at 197–98; USSC, Special
Report to Congress: Cocaine and Federal Sentencing Policy 8
(Apr. 1997); USSC, Report to Congress: Cocaine and Federal
Sentencing Policy 91, 103 (May 2002); USSC, Report to
Congress: Cocaine and Federal Sentencing Policy 8 (May
2007)).

In the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372, the Congress responded to the Commission’s
call for reform and reduced the crack-to-powder disparity to
18-to-1. Terry, 141 S. Ct. at 1861. To narrow the gap, section
2 of the Fair Sentencing Act left the powder quantities the same
and increased the crack cocaine quantity thresholds that
triggered mandatory minimums. § 2(a), 124 Stat. at 2372. In
relevant part, the triggering quantity increased from 5 grams to
28 grams. Id. § 2(a)(2), 124 Stat. at 2372. The Fair Sentencing
Act therefore increased the threshold to trigger a mandatory life
sentence under the Super CCE provision from 1,500 grams to
8,400 grams (300 times 28 grams). “These changes did not
apply to those who had been sentenced before 2010.” Terry,
141 S. Ct. at 1861.

Enter the First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194. The First Step Act made the Fair Sentencing Act’s
quantity changes retroactive and gives the court the discretion
to reduce the sentences of certain crack cocaine offenders. See
First Step Act § 404, 132 Stat. at 5222; Terry, 141 S. Ct. at
 7
1862. Under section 404 of the First Step Act, a defendant who
committed a “covered offense” may move for 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.” § 404(b), 132 Stat. at 5222. A “‘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 . . . , that was committed before” the
enactment of the Fair Sentencing Act in 2010. See id. § 404(a),
132 Stat. at 5222.

B. FACTUAL AND PROCEDURAL BACKGROUND

In the late 1980s, Michael Palmer ran a large-scale drug
conspiracy that sold crack cocaine in Washington, D.C. In
1989, a jury convicted him on twelve counts, including,
significantly, running a CCE “involving more than 1500
grams” of crack cocaine and thus triggering the Super CCE
provision. United States v. Harris, 959 F.2d 246, 253 (D.C. Cir.
1992) (per curiam). After sentencing Palmer to the statutorily
required mandatory minimum—life without the possibility of
parole, 21 U.S.C. § 848(b) (1988)—the sentencing judge
commented that Palmer’s sentence was “long and harsh”
because his “conspiracy brought between 100 and 200
kilo[gram]s of crack [cocaine] into this city; sold it in several
neighborhoods; created or supported hundreds, if not
thousands, of addicts”; and “created havoc and misery in [its]
path.” App. 19–20. The Presentence Investigation Report also
estimated that Palmer’s operation distributed more than 150
kilograms of crack cocaine. More broadly, in discussing the
“sentencing principles” behind the sentences for Palmer and his
lieutenants, the sentencing judge noted that

more important than punishment is . . .
deterrence. Deterrence means sending a
 8
message to others. The message is this: if you
bring large amounts of drugs into the District of
Columbia for sale, and particularly if it’s
operated with weapons and with violence, you
will go to the penitentiary for a long time,
perhaps for life.

Tr. of Harris Sentencing, at 4. The sentencing judge also
remarked, “In the 25 years . . . that I have been on the bench, I
have seldom, if ever, seen a case in which the evidence was as
overwhelming as it was in this case . . . and particularly [as to]
the guilt of Mr. Palmer.” Tr. of Palmer Sentencing, at 7.

We affirmed Palmer’s convictions on direct appeal,
Harris, 959 F.2d at 252–57, and over the last twenty years,
Palmer has pressed numerous claims seeking relief under 28
U.S.C. § 2255, see United States v. Palmer, 97 F.3d 593
(Table) (D.C. Cir. 1996) (per curiam); United States v. Palmer,
296 F.3d 1135 (D.C. Cir. 2002); United States v. Palmer, 902
F. Supp. 2d 1, 4, 10–11 (D.D.C. 2012). In 2012, the district
court consolidated Palmer’s claims and partially granted his
section 2255 petition, vacating five of his convictions based on
changes in the law of merger. Palmer, 902 F. Supp. 2d at 10–
12. The district court, however, left the CCE conviction and
sentence intact, in addition to six other counts, id. at 11–12,
and, in 2015, it issued, at Palmer’s request, an amended
judgment reflecting the vacatur of the merged counts, App. 31.
In 2017, we affirmed the amended judgment. See United States
v. Palmer, 854 F.3d 39, 41–42 (D.C. Cir.), cert. denied, 138 S.
Ct. 286 (2017).

On September 28, 2018, Palmer filed a pro se section 2255
petition, which his counsel supplemented on August 11, 2019.
In an unpublished order on July 2, 2020, the district court
denied the supplemented motion, concluding that Palmer’s
 9
section 2255 petition was successive under 28 U.S.C. § 2255(h)
and therefore the court “lack[ed] jurisdiction to rule on the
motion” without this court’s certification. App. 127–29. On
July 31, 2020, Palmer’s counsel requested a certificate of
appealability regarding the section 2255 order, arguing, inter
alia, that his motion was not successive because it attacked the
2015 amended judgment, which amounted to a “new
judgment” per Magwood v. Patterson, 561 U.S. 320 (2010).
Shortly thereafter, the district court granted the certificate of
appealability.

On January 19, 2020, while his section 2255 petition was
pending, Palmer filed the primary motion at issue here: a pro
se motion for a reduced sentence pursuant to section 404 of the
First Step Act. Having served more than thirty years by then,
Palmer challenged only the life sentence associated with the
Super CCE conviction. In his motion, Palmer first argued that
he was eligible for relief because the change in the drug
quantity associated with 21 U.S.C. § 848(b) made it a “covered
offense” under section 404(a) of the First Step Act. He asked
the court to exercise its discretion under section 404(b) to
reduce his sentence to time served and to release him on his
own recognizance. In assessing the 18 U.S.C. § 3553(a)
sentencing factors, he urged the court to focus on mitigating
rehabilitation evidence and to consider his post-conviction
conduct. Id. at 29–30.

On the same day it issued the section 2255 order, the
district court denied Palmer’s First Step Act motion. Id. at 138–
49 (First Step Act Order). The district court first determined
that Palmer was not eligible for First Step Act relief because
the relevant drug quantity for eligibility is “the actual quantity
the defendant is held responsible for at sentencing,” not the
drug quantity in the statute of conviction. Id. at 142–46. After
noting the large quantities of drugs attributable to Palmer’s
 10
operation, the district court concluded that the Congress “did
not intend to sweep in defendants who were still above the
increased mandatory minimum quantity threshold.” Id. at 146.
In the alternative, the district court concluded that “[e]ven if
Palmer were eligible under the First Step Act . . . the Court
would not in its discretion grant his motion for a reduced
sentence.” Id. at 147. In the key paragraph, the court continued:

Palmer is not the type of offender contemplated
by either the Fair Sentencing Act or the First
Step Act. The Fair Sentencing Act sought to
reduce sentencing disparities between crack and
powder cocaine defendants by reforming the
sentencing regimes applicable to crack cocaine
defendants. Section 404 of the First Step Act
merely authorized the retroactive application of
the Fair Sentencing Act. Palmer faces no
disparity between the mandatory minimum he
was sentenced under and the one he would have
faced “if sections 2 and 3 of the Fair Sentencing
Act . . . were in effect at the time.” 132 Stat.
5194 § 404(b).

Id. (ellipsis in original).

The court then concluded that the section 3553(a) factors
did not militate in favor of a sentence reduction. After
highlighting two of the factors—(1) the nature of the offense
and the characteristics of the defendant and (2) the need for the
sentence because of the seriousness of the offense—the court
noted Palmer’s disciplinary sanctions during his incarceration
and the sentencing judge’s comments regarding the breadth of
the Palmer operation and its effect on the community. Finally,
the court commented that it had “carefully considered the
impressive supportive letters . . . from Palmer’s family and
 11
friends” but that the seriousness of Palmer’s crimes meant that
“a sentence reduction [was] not warranted.” Id. at 148.

In letters sent to the district court on August 12 and 13,
2020, Palmer, acting pro se, wrote that he wanted to appeal the
district court’s orders denying his First Step Act motion and
section 2255 petition. Id. at 161–64, 167–74. Palmer filed that
letter pro se because his counsel had passed away on August 3,
2020, after having filed Palmer’s requested certificate of
appealability on July 31. In his August 12 letter, Palmer stated
that he learned of his counsel’s death on August 7. In a
September 3, 2020 order, the district court concluded that the
letters “provide adequate notice that [Palmer] intends to appeal
under the motion his counsel filed on July 31, 2020, which the
Court will therefore consider a Notice of Appeal.” Order,
United States v. Palmer, Cr. No. 89-36 (D.D.C. Sept. 3, 2020),
ECF No. 510.

II. ANALYSIS

A. FIRST STEP ACT ORDER

We have appellate jurisdiction of the First Step Act Order
under 28 U.S.C. § 1291. See United States v. Lawrence, 1 F.4th
40, 45 (D.C. Cir. 2021). “[T]he abuse-of-discretion standard of
review applies to appellate review of all sentencing decisions.”
White, 984 F.3d at 85 (quoting Gall v. United States, 552 U.S.
38, 49 (2007)). We review statutory interpretation questions de
novo. Id.

Palmer first argues, and the government concedes, that in
light of White, the district court incorrectly concluded that
Palmer is ineligible for First Step Act relief. The government
argues, however, that remand is inappropriate because
Palmer’s notice of appeal was untimely and because we can
rely on the district court’s alternative holding—that even if
 12
Palmer is eligible, the court would not exercise its discretion to
grant relief. See App. 147–48. We disagree. We conclude that
the court granted—by implication if not expressly—an
extension to file the notice of appeal and because it is unclear
whether the district court’s exercise of discretion started from
the correct mandatory minimum post-White, we remand for
clarification. See Chavez-Meza v. United States, 138 S. Ct.
1959, 1965 (2018) (“If the court of appeals considers a[]
[sentencing] explanation inadequate in a particular case, it can
send the case back to the district court for a more complete
explanation.”).

1. Timeliness of Notice of Appeal

Under Federal Rule of Appellate Procedure 4(b)(1)(A), the
government asserts, Palmer’s pro se notice of appeal is
untimely because it was due 14 days after the district court
entered the First Step Act Order on July 2, 2020. It was not
placed in the prison mail system until August 12, 2020—41
days after the entry of the order. The government contends that
Palmer “has offered no justification for his failure to note an
appeal on or before July 16, 2020,” and that we should dismiss
his challenge. In rebuttal, Palmer’s appellate counsel
acknowledges that the notice arrived well after the 14-day
deadline but asserts that the notice was nevertheless timely
because the district court implicitly granted a 30-day extension
until August 16 under Rule 4(b)(4) when it treated the August
12 letter as a notice of appeal and ordered its filing. Fed. R.
App. P. 4(b)(4) (“Upon a finding of excusable neglect or good
cause, the district court may—before or after the time has
expired, with or without motion and notice—extend the time to
file a notice of appeal for a period not to exceed 30 days from
the expiration of the time otherwise prescribed by this Rule
4(b).”).
 13
We have previously “declined [an appellant’s] invitation
to equate the ministerial act of docketing a tardy notice of
appeal with an implicit grant of an extension of time by the
district court.” United States v. Long, 905 F.2d 1572, 1574
(D.C. Cir. 1990). In Long, a defendant-appellant also filed a
notice after the Rule 4(b) deadline and the district court
docketed the notice. Id. at 1574. Writing for the court, then-
Judge Thomas reasoned: “Docketing a notice of appeal is a
clerical task, and does not require the approbation of the trial
judge. It thus presents no occasion for a party to make a
showing of excusable neglect.” Id. It was therefore important
that there was no evidence the district judge saw the notice or
had an opportunity to determine whether there was excusable
neglect. We remanded to the district court for it to determine
whether excusable neglect existed. Id. at 1575.

We noted in Long, however, that “there may be cases in
which an implicit finding of excusable neglect would be less of
a fiction.” Id. at 1574 n.2. For example, if “a trial judge takes
some explicit action with respect to a tardy appeal, the judge at
a minimum is aware of the appeal; under these circumstances,
his action could arguably be construed as an implicit finding of
excusable neglect.” Id. The September 3, 2020 order shows that
the district judge was “at a minimum aware of the appeal”: he
noted the denial of Palmer’s section 2255 and First Step Act
motions, indicated that he had read Palmer’s handwritten
letters by noting that they “provide[d] adequate notice that he
intend[ed] to appeal” and mentioned the death of Palmer’s
counsel on August 3. Order, United States v. Palmer, Cr. No.
89-36 (D.D.C. Sept. 3, 2020), ECF No. 510. The district judge
also ordered the docketing of the letters and affixed his
signature to those orders. In addition, Palmer expressed his
desire to appeal on page five of one letter and across two pages
of another. At bottom, the order and letters manifest the district
judge’s analysis and awareness of Palmer’s situation—
 14
including that Palmer was in lockdown beginning in February
2020 due to the coronavirus pandemic—neither of which
existed in Long. Indeed, the district judge’s confirmation that
the letters provided “adequate notice” evinces a level of
approbation absent from Long. Accordingly, it is clear to us
that the district judge’s order “constitute[s] an implicit
extension of time,” Long, 905 F.2d at 1574 n.2, and a remand
for the court to do so again would waste time and judicial
resources.

2. Merits

Decided five months after the district court issued its First
Step Act Order, White provides our Circuit’s framework to
evaluate First Step Act motions. See 984 F.3d at 85–93. First,
under section 404(a), the court must determine whether a
defendant is eligible for relief—that is, whether the movant
committed a “covered offense,” defined as “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.” First
Step Act § 404(a), 132 Stat. at 5222. In White, the district court
had determined that even though the appellant-defendants were
“eligible” for relief, relief was “not ‘available’” because,
“[according to] judge-found drug quantities,” the statutory
penalties for certain counts were not modified by section 2 of
the Fair Sentencing Act. 984 F.3d at 92. We reversed, holding
that there is no “availability test” and that in assessing
eligibility, the district court “cannot determine, using judge- or
jury-found drug quantities, what effect the Fair Sentencing Act
‘would have had’ on a defendant’s sentence.” Id. at 86–87.

As occurred in White, the district court here used judge-
found drug quantities to determine that Palmer was not eligible
for section 404 relief. As described above, supra at 6, section
 15
2(a) of the Fair Sentencing Act increased the threshold quantity
in 21 U.S.C. § 841(b)(1)(B) necessary to trigger certain
mandatory minimum penalties. See 124 Stat. at 2372. The
Super CCE offense incorporated those threshold quantities by
requiring the involvement of “at least 300 times the quantity of
a substance described in subsection 841(b)(1)(B).” 21 U.S.C.
§ 848(b)(2)(A) (1988). With the retroactive application of the
Fair Sentencing Act, 8,400 grams—rather than 1,500 grams—
became the minimum triggering quantity to support a Super
CCE offense. See Fair Sentencing Act § 2(a), 124 Stat. at 2372
(noting increase from 5 to 28 grams in 21 U.S.C.
§ 841(b)(1)(B)(iii)). Accordingly, as the government agrees,
Palmer’s Super CCE offense is a “covered offense” and the
district court, which did not have the benefit of our decision in
White, incorrectly gauged Palmer’s section 404 eligibility
because “whether an offense is ‘covered’ does not depend on
the actual drug amounts attributed to a defendant.” 984 F.3d at
86.

Second, under section 404(b), 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 . . .
were in effect at the time the covered offense was committed.”
First Step Act § 404(b), 132 Stat. at 5222. Put simply, once a
defendant is considered eligible, the district court exercises its
“broad discretion” to decide “whether it should reduce the
sentence.” White, 984 F.3d at 88 (quoting United States v.
Hudson, 967 F.3d 605, 610 (7th Cir. 2020)); see also First Step
Act § 404(c) (“Nothing in this section shall be construed to
require a court to reduce any sentence pursuant to this
section.”), 132 Stat. at 5222.

White also spells out what considerations are relevant in
assessing whether to grant a sentence reduction. Relying on
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), we began
 16
by noting the remedial purpose of the First Step Act, including
that it and the Fair Sentencing Act “are strong remedial
statutes, meant to rectify disproportionate and racially disparate
sentencing penalties.” White, 984 F.3d at 90. We then agreed
with the Seventh Circuit: to further the goal of the First Step
Act, a “district court may consider all relevant factors when
determining whether an eligible defendant merits relief under
the First Step Act.” Id. (quoting Hudson, 967 F.3d at 611). We
specified that certain factors, including “new statutory
minimum or maximum penalties; current Guidelines; post-
sentencing conduct; and other relevant information about a
defendant’s history and conduct,” ensure that a sentence is
“sufficient, but not greater than necessary, to fulfill the
purposes of [18 U.S.C.] § 3553(a).” Id. (emphasis added)
(quoting Hudson, 967 F.3d at 609). We stressed the importance
of post-sentencing conduct, id., before noting that on remand
in that case, the district court must “give proper consideration
to the sentencing factors outlined in [section] 3553(a),” id. at
93; see also Lawrence, 1 F.4th at 43–44. Consideration of the
section 3553(a) factors in White was “especially important”
given the “complexity” of the record. 984 F.3d at 90.3 Finally,

3
As we noted in White, “[e]very circuit court that has examined
the issue has held that a district court may, or must, consider the 18
U.S.C. § 3553(a) sentencing factors when passing on a motion for
relief under section 404 of the First Step Act.” 984 F.3d at 90 (citing
United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020); United
States v. Easter, 975 F.3d 318, 323–26 (3d Cir. 2020); United States
v. Jackson, 945 F.3d 315, 322 n.7 (5th Cir. 2019)). White is
nonetheless slightly opaque as to whether section 3553(a) factors
may or must be considered in all cases. See id. at 90–91 (district
courts “may consider all relevant factors” and section 3553(a) factors
are “especially important” in cases with “complex[]” records), 93
(district court to consider section 3553(a) factors on remand).
Subsequently, in Lawrence, we characterized White as having issued
a directive that district courts “must consider ‘all relevant factors[,]’
 17
the district court’s sentence reduction decision “must be
procedurally reasonable and supported by a sufficiently
compelling justification.” Id. at 91 (quoting United States v.
Boulding, 960 F.3d 774, 784 (6th Cir. 2020)); see also United
States v. Collington, 995 F.3d 347, 359 (4th Cir. 2021)
(adopting reasonableness review).

Palmer challenges the district court’s treatment of the
“relevant factors.” Primarily, he argues that the district court
erred by using the wrong statutory minimum sentence in
deciding whether to grant relief. Once again, White is
instructive. In determining the “new statutory minimum”
penalty that sets the lower bound of the district court’s
discretion “to impose a sentence ‘as if section 2 . . . of the Fair
Sentencing Act [was] in effect,’ the court must use the revised
penalty range now applicable to the drug amount in the original
statute of conviction.” White, 984 F.3d at 86.

For spearheading a crack cocaine network, a jury
convicted Palmer of the Super CCE offense, a statute of
conviction originally involving at least 1,500 grams of crack
cocaine. Plainly, that amount is smaller than the 8,400 grams
necessary to trigger the Super CCE threshold under section 2(a)
of the Fair Sentencing Act. 124 Stat. at 2372. The 1,500-gram

including not only the sentencing factors outlined at 18 U.S.C.
§ 3553(a), but potentially also ‘new statutory minimum or maximum
penalties; current Guidelines; post-sentencing conduct; and other
relevant information about a defendant's history and conduct.’” See
Lawrence, 1 F.4th 40, 43–44 (quoting White, 984 F.3d at 90, 92–93).
In Lawrence, the “sole and narrow question” was whether a First
Step Act movant is categorically entitled to allocute before the
district court rules on a section 404 motion for sentence reduction.
See id. at 42, 46. Because the section 3553(a) factors were not
necessary to the allocution holding, the directive is likely dicta.
 18
amount, however, nonetheless qualifies for the baseline CCE
offense, which has no minimum drug quantity threshold. See
21 U.S.C. § 848(a). That offense includes a twenty-year
mandatory minimum. Id. Twenty years, then, is the correct
mandatory minimum for a district judge to use in deciding
whether to “impose a reduced sentence” for Palmer’s CCE
offense under the First Step Act. First Step Act § 404(b), 124
Stat. at 5222; accord White, 984 F.3d at 86 (using drug quantity
in statute of conviction, rather than greater amount attributable
to defendant’s conspiracy, to determine mandatory minimum).

At the end of the key paragraph addressing the mandatory
minima, the district court stated that “Palmer faces no disparity
between the mandatory minimum he was sentenced under and
the one he would have faced ‘if sections 2 and 3 of the Fair
Sentencing Act . . . were in effect at the time.’” App. 147. But
there should be a disparity; Palmer was sentenced under the
Super CCE statute and received the mandatory life sentence
that he is currently serving, rather than the twenty-year
mandatory minimum he would have faced using the drug
quantity in the statute of conviction, as mandated by White. It
is therefore unclear if the district court correctly applied “the
legal requirements governing review of motions for reduced
sentences under section 404(b) of the First Step Act.” White,
984 F.3d at 92.4

We recognize that the district court may have used the
judge- or jury-found drug quantities attributable to Palmer’s
CCE to conclude that he exceeded the 8,400-gram threshold
and therefore would have received a life sentence even under
the higher threshold. Cf. id. at 88 (“The court may consider

4
As the government acknowledged at oral argument, “when a
court is making a discretionary determination, it has to understand
what it’s choosing between.” Tr. of Oral Arg. 35:5–35:7.
 19
both judge-found and jury-found drug quantities as part of its
exercise of discretion.”). Indeed, it is possible that the district
court implicitly recognized the twenty-year mandatory
minimum by initially acknowledging earlier in the paragraph
its discretion to lower Palmer’s sentence from life without
parole. But such an inference conflicts with the court’s later
statement that there is “no disparity” because the mandatory
minimum is life. Given the anchoring effect of using the
incorrect mandatory minimum sentence, see id. at 87, and the
importance of mandatory minima to sentencing, see Alleyne v.
United States, 570 U.S. 99, 112–13 (2013), we remand for the
district court to clarify the “new [mandatory] minimum
. . . penalt[y],” White, 984 F.3d at 90 (quoting Hudson, 967
F.3d at 609); see also United States v. Graham, 317 F.3d 262,
275 (D.C. Cir. 2003) (remanding when district court “may have
applied” incorrect mandatory minimum); United States v.
McKeever, 824 F.3d 1113, 1125 (D.C. Cir. 2016) (remanding
for clarification because record was unclear and “law was in
flux” and noting “we will not search for error when” remand
“will better serve the ends of justice”).5

As for the remainder of the district court’s analysis, the
district court properly acknowledged the remedial purpose of
the Fair Sentencing Act and the First Step Act and explicitly

5
Palmer also argues that the jury-found quantity of 1,500 grams
is the only factual finding of a drug quantity in the case and that, in
exercising its discretion, the district court should not have considered
the “100 to 200 kilo[gram]s of crack” cocaine referenced by the
original sentencing judge, App. 19, nor the 150 kilograms referenced
in the Presentence Report. The district court was operating without
the benefit of White’s instruction to consider jury- or judge-found
facts, 984 F.3d at 88, and we will leave it to the district court to
address in the first instance whether the quantities qualify as “judge-
found” under White.
 20
considered two of the section 3553(a) factors, App. 147–48,
which are “especially important” in “complex[]” cases like this
one, see White, 984 F.3d at 90–91. Although “there is no
requirement that sentencing courts expressly list or discuss
every Section 3553(a) factor,” United States v. Knight, 824
F.3d 1105, 1110 (D.C. Cir. 2016), “express acknowledgment
of” the relevant factors and “mitigation arguments is of course
helpful and encouraged,” see United States v. Pyles, 862 F.3d
82, 94 (D.C. Cir. 2017), especially if there is no record of a
hearing on the First Step Act motion for relief.6 Because the
district court ruled without the benefit of White and because the
“new statutory minimum” frames the district court’s exercise
of discretion, cf. Molina-Martinez v. United States, 578 U.S.
189, 198–99 (2016) (detailing anchoring effect Federal
Sentencing Guidelines have on “district court’s discretion”
(citation omitted)), we do not opine on the adequacy of its
consideration of “relevant factors” other than the “new
statutory minimum,”7 White, 984 F.3d at 90 (citation omitted).

6
In White, we did not have the benefit of a hearing transcript
and remanded in part because the district court order “fail[ed] to
mention” relevant mitigation arguments and rehabilitation evidence.
984 F.3d at 93.
7
Palmer argues that the district court did not adequately
consider his post-sentencing rehabilitation evidence. As the district
court acknowledged, App. 148, Palmer provided letters from family
members and friends, id. at 37–39, 42, 56, 59, as well as
unacknowledged evidence from prison officials and prison records
detailing enrollment in a number of rehabilitative classes and
programs, see id. 44–55, 57–58, 60–78, 111–15. On the other hand,
Palmer’s prison disciplinary record lists over twenty incidents
leading to sanctions, including at least six violent incidents. See id.
117–18.
 21
B. SECTION 2255 ORDER

The district court concluded that it lacked jurisdiction of
Palmer’s section 2255 petition because it was a “second or
successive motion” under 28 U.S.C. § 2255(h). App. 127–29.
To so conclude, the district court relied on Magwood v.
Patterson, in which the Supreme Court held that “the phrase
‘second and successive’ [in 28 U.S.C. § 2244(b)] must be
interpreted with respect to the judgment challenged.” 561 U.S.
at 333. Palmer argues that his “second in time [section] 2255
motion is not an unauthorized successive motion because it is
his first [section] 2255 motion challenging the amended
judgment.” Appellant Br. 28. The crux of the issue is whether
“there is a ‘new judgment intervening between the two [section
2255] petitions.’” See Magwood, 561 U.S. at 341 (quoting
Burton v. Stewart, 549 U.S. 147, 156 (2007)). Because on
remand the district court has the authority to grant Palmer’s
First Step Act motion and impose a new sentence with an
accompanying new judgment, we will hold the section 2255
appeal in abeyance pending resolution of the First Step Act
proceedings. See Basardh v. Gates, 545 F.3d 1068, 1069 (D.C.
Cir. 2008); Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936).

For the foregoing reasons, we reverse the district court’s
judgment, remand for further proceedings consistent with this
opinion and hold the section 2255 appeal in abeyance.

So ordered.