19-4199-cr United States v. Morrison

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of January, two thousand twenty-one.

PRESENT: GUIDO CALABRESI, REENA RAGGI, DENNY CHIN, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

UNITED STATES OF AMERICA, Appellee,

-v- 19-4199-cr

HIBAH LEE, MARK GABRIEL, AKA Bubbles, BOBBY MOORE, JR., AKA Pops, ANDRE DAVIDSON, AKA O Dog, BOBBY SAUNDERS, AKA Bobby Moore, CARMEN MOORE, AKA Munchie, TYRONE MOORE, AKA Puss, HISAN LEE, AKA Ice, AKA Devontea Clark, SELBOURNE WAITE, AKA Silky, DELROY LEE, AKA Specs, AKA DJ, DAKWAN EDWARDS, AKA Doc, MARQUISH JONES, AKA Lunchbox, MARK HART, AKA Movements, RAHEEM TUCKER, AKA Ras Unknown, DEMETRI YOUNG, AKA Walter Malone, CHRISTOPHER DIAZ, AKA X Box, ANTHONY MICHAEL DIAZ, AKA Little X, PAUL LOVE, AARON BIRCH, AKA A, KEVIN BECKFORD, AKA Carl Beckford, JERMELL FALZONE, AKA Mel, LEVAR GAYLE, AKA Train, Defendants,

ROBERT MORRISON, AKA Chips, Defendant-Appellant.

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FOR APPELLEE: ALEXANDER LI, Assistant United States Attorney (Thomas McKay, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT-APPELLANT: DANIEL HABIB, Federal Defenders of New York, Inc., Appeals Bureau, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Preska, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

Defendant-appellant Robert Morrison appeals from the district court's

order, entered December 11, 2019, denying his motion for a sentence reduction

pursuant to the First Step Act of 2018 (the "Act"), which makes retroactive the

2 provisions of the Fair Sentencing Act of 2010 that lowered mandatory minimum

sentences for certain offenses involving crack cocaine. On appeal, Morrison argues that

the district court abused its discretion in denying his motion. We assume the parties'

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

I. Background

On January 4, 2010, Morrison pleaded guilty, pursuant to a plea

agreement, to a two-count superseding information charging him with (1) conspiracy to

distribute and possess with intent to distribute five grams or more of crack cocaine, in

violation of

, 841(a)(1), (b)(1)(B), and 846, and (2) discharging a firearm

during and in relation to a crime of violence, in violation of

(c)(1)(A)(iii)

and 2. At the time, the crack-conspiracy offense carried a mandatory minimum

sentence of five years' imprisonment, while the § 924(c) count, as it does now, carried a

mandatory minimum of ten years. In the plea agreement, the parties stipulated that

Morrison "conspired to distribute and possess with intent to distribute at least 150

grams but less than 500 grams" of crack. The parties also agreed that the applicable

Guidelines range for the crack-conspiracy count was 97 to 121 months and that the §

924(c) count carried a mandatory minimum consecutive sentence of 120 months, for a

total Guidelines range of 217 to 241 months.

3 On January 12, 2012, the district court (Jones, J.) adopted the parties'

Guidelines calculation, and then varied downward by sentencing Morrison to 72

months on the crack-conspiracy count and to a consecutive 120 months on the § 924(c)

count, for a total of 192 months. Morrison is currently scheduled to be released on April

30, 2021.

On July 22, 2019, Morrison submitted a motion for reduction of his

sentence to time served pursuant to the Act, arguing that his crack-conspiracy count

was no longer anchored by a five-year mandatory minimum and pointing to his

rehabilitative efforts during his approximately fourteen years of imprisonment. On

December 11, 2019, the district court (Preska, J.) denied Morrison's motion for "two

main reasons": (1) Morrison's "less than stellar" disciplinary record which "still raise[d]

questions about the extent of Morrison's remediation," and, "more importantly," (2) "the

severity of Morrison's offense conduct." App'x at 150. The district court reasoned that a

sentence reduction would "give him an undeserved windfall unavailable to defendants

who engaged in the exact same conduct post-Fair Sentencing Act." App'x at 151.

II. Discussion

A sentence reduction under the Act rests within the discretion of the

district court.

(c),

, 5222 ("Nothing in this section

shall be construed to require a court to reduce any sentence pursuant to this section.").

We "review the denial of a motion for a discretionary sentence reduction for abuse of

4 discretion." United States v. Holloway,

(2d Cir. 2020). "A district court

abuses its discretion when a challenged ruling rests on an error of law, a clearly

erroneous finding of fact, or otherwise cannot be located within the range of permissible

decisions." United States v. Parnell,

(2d Cir. 2020) (internal quotation

marks omitted).

First, on the eligibility question, the district court correctly held that

Morrison is eligible for relief under the Act. "[I]t is a defendant's statutory offense, not

his or her 'actual' conduct, that determines whether he has been sentenced for a

'covered offense' within the meaning of Section 404(a) [of the Act], and is consequently

eligible for relief under Section 404(b)." United States v. Johnson,

(2d

Cir. 2020). Morrison was convicted for crack conspiracy, in violation of

§ 841(b)(1)(B)(iii), the statutory penalty for which was later modified by § 2(a)(2) of the

Fair Sentencing Act of 2010,

(a)(2);

, 2372, and

Morrison committed his crimes before August 3, 2010, thus making his conviction a

"covered offense," 132 Stat. at 5222. See Johnson,

.

Second, we turn to whether the district court abused its discretion in

declining to reduce Morrison's sentence on the merits. Morrison does not challenge the

reasonableness of the district court's first basis for rejecting his motion: Morrison's "less

than stellar" disciplinary record of seven sanctions since 2008 for misconduct, including

fighting, marijuana use, and disruptive behavior. App'x at 150. Morrison suggests,

5 however, that the district court's denial of a sentencing reduction cannot rest on this

basis alone.

We need not decide whether the first basis is sufficient alone. The district

court also identified a "more important[ ]" ground for denial of relief: "the severity of

Morrison's offense conduct makes it inappropriate to reduce his sentence" because

doing so would "give him an undeserved windfall unavailable to defendants who

engaged in the exact same conduct post-Fair Sentencing Act," which would be

inconsistent with the "Court's obligation to impose sentences that both 'reflect the

seriousness of the offense' and 'avoid unwarranted sentencing disparities among

defendants with similar records who have been found guilty of similar conduct.'"

App'x at 150-51 (quoting

(a)(2)(A) and (a)(6)).

Specifically, the district court noted that while Morrison was "only

charged for five grams of crack," his violation "actually involved a much larger amount:

over 150 grams." App'x at 150. In support, the district court cited to Morrison's

sentencing transcript in which "Morrison did not challenge the drug quantity of over

150 grams of crack specified in the plea agreement," App'x at 146, as well as the plea

agreement itself, which set the upper bound of the weight distributed by Morrison at

500 grams, App'x at 32. Furthermore, at the sentencing hearing, Morrison withdrew a

request for a reduced Guidelines range and declined an evidentiary hearing on the issue

6 of drug quantity after the government indicated it could prove Morrison's agreement to

distribute 500 grams of crack. App'x at 67-68.

On this record, which also shows the district court's consideration of "the

parties' submissions, the

(a) factors, and Morrison's post-offense

conduct," App'x at 150, and its concerns regarding Morrison's disciplinary record and

the seriousness of his crimes, we are not persuaded that the district court made a "legal

and logical error," Appellant's Brief at 1, or a clearly erroneous factual finding in

exercising its discretion to deny a reduction of Morrison's 72-month sentence for the

crack-conspiracy conviction. The district court's denial did not fall outside "the range of

permissible decisions." Parnell,

(internal quotation marks omitted).

Finally, Morrison separately argues that Johnson forbids a district court

from engaging in "mounting assumptions,"

(such as conjecturing as to

what the government would have charged and could have proved under a different

statutory scheme), and posits this alleged legal error as an independent ground for

vacatur. The argument that Johnson restricts a district court's discretion during a merits

analysis of a sentence reduction motion is unavailing. This Court explicitly narrowed

the scope of Johnson to answering the "sole question" of whether a defendant was

convicted of a "'covered offense' and is therefore eligible for relief under Section 404 of

the First Step Act."

. Indeed, contrary to Morrison's argument, in Johnson we

emphasized the availability of judicial discretion in denying reductions to eligible

7 defendants in response to the "government's frustration" with the broad eligibility for

sentencing reductions pursuant to the Act.

.

* * *

We have considered Morrison's remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the order of the district

court.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

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