22-1612 United States v. Iverson

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 TO 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 21st day of December, two thousand twenty-three.

PRESENT:

GUIDO CALABRESI, RICHARD J. SULLIVAN, MYRNA PÉREZ, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-1612

ELIJAH IVERSON,

Defendant-Appellant.

_____________________________________ For Defendant-Appellant: Elijah Iverson, pro se, Lewisburg, PA.

For Appellee: Monica J. Richards, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.

Appeal from an order of the United States District Court for the Western

District of New York (Lawrence J. Vilardo, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

Elijah Iverson, who is incarcerated and proceeding pro se, appeals from the

district court’s July 13, 2022 order denying his motion for a reduction in sentence

under sections 401 and 404 of the First Step Act of 2018. We assume the parties’

familiarity with the facts, procedural history, and issues on appeal, which we refer

to only as necessary to resolve this appeal.

In 2016, a jury convicted Iverson of five counts related to his possession with

the intent to distribute narcotics and his possession of firearms in furtherance of

the narcotics offenses. The district court sentenced him to 180 months’

imprisonment, to be followed by eight years of supervised release. In 2021,

Iverson filed a motion requesting that his sentence be reduced pursuant to the First

2 Step Act. In denying Iverson’s motion, the district court determined that Iverson

was not entitled to relief under section 401 because he was sentenced “two years

before the enactment of the First Step Act,” and this section did not apply

retroactively to his sentence. United States v. Iverson, No. 14-cr-197 (LJV),

, at *1 (W.D.N.Y. July 13, 2022). The district court additionally concluded

that Iverson was not eligible for a sentence reduction under section 404 because he

had already been sentenced in accordance with the Fair Sentencing Act’s

amendments and his crimes were not “covered offense[s]” for the purposes of that

section. Id. at *2. This appeal followed.

Although we “typically review the denial of a motion for a discretionary

sentence reduction for abuse of discretion,” our review is de novo when, as here, a

district court bases “its decision entirely on statutory interpretation.” United

States v. Holloway,

(2d Cir. 2020). Because Iverson is proceeding

pro se, we construe his submissions “liberally” and interpret them “to raise the

strongest arguments that they suggest.” Meadows v. United Servs., Inc.,

, 243 (2d Cir. 2020) (internal quotation marks omitted). We therefore construe

Iverson’s appellate brief as challenging the district court’s decision as to both

section 401 and section 404 of the First Step Act. We nonetheless conclude that

3 the challenges are meritless.

First, the district court properly determined that Iverson was not eligible for

a sentence reduction under section 401. As relevant here, section 401 amended

to provide that certain mandatory sentencing enhancements are

triggered only when a defendant has a prior conviction for a serious drug felony,

as opposed to any drug felony. See First Step Act,

,

, 5220–21 (2018). Section 401 explicitly provides, however, that those

amendments only apply to offenses committed before the date of the Act’s

enactment “if a sentence for the offense has not been imposed as of such date of

enactment.” § 401(c), 132 Stat. at 5221 (emphasis added).

Because Iverson was sentenced in October 2016, more than two years before

the First Step Act was enacted, he is plainly precluded from relief under section

401. See United States v. Bryant,

(2d Cir. 2021), vacated and

remanded on other grounds,

(2022); United States v. Tomes,

(6th Cir. 2021), cert. denied,

(2022); United States v. Brunson,

(4th Cir. 2020); Young v. United States,

(D.C. Cir.

2019); United States v. Aviles,

(3d Cir. 2019). We therefore reject

Iverson’s contention that the district court erred in concluding that section 401

4 does not apply retroactively to his sentence.

Second, the district court correctly determined that Iverson was not entitled

to a sentence reduction under section 404. In 2010, Congress passed the Fair

Sentencing Act, which “marked the culmination of a decades-long effort to

address what had been a 100-to-1 disparity between the amounts of crack and

powder cocaine required to trigger the mandatory statutory penalties in

(b)(1).” United States v. Davis,

(2d Cir. 2020); see also

(noting that the Fair Sentencing Act “increased the threshold quantities of crack

cocaine required to trigger each of [s]ection 841(b)(1)’s mandatory statutory

penalty ranges”). Eight years later, Congress enacted the First Step Act, which,

among other things, empowered courts to reduce the sentences of defendants

convicted of certain “covered offense[s]” as if the Fair Sentencing Act had been in

effect “at the time the covered offense was committed.” § 404, 132 Stat. at 5222.

But section 404 explicitly prohibits district courts from reducing a defendant’s

sentence “if the sentence was previously imposed” in accordance with the

amendments of the Fair Sentencing Act. § 404(c), 132 Stat. at 5222. Section 404

therefore unambiguously establishes that “a defendant whose sentence was

imposed after the effective date of the Fair Sentencing Act, and in a way that

5 follows its terms, is ineligible for First Step Act relief.” United States v. Boyd,

(2d Cir. 2021) (alterations and internal quotation marks omitted).

The record here plainly reflects that Iverson was convicted and sentenced

well after the passage of the Fair Sentencing Act of 2010 and that the district court

sentenced him in accordance with the Act’s terms. See Dist. Ct. Doc. No. 129 at

11 (determining Iverson’s mandatory minimum term of imprisonment in

reference to provisions as amended by the Fair Sentencing Act). Because

Iverson’s sentence already accounts for the reforms brought about by the Fair

Sentencing Act, he cannot claim relief under section 404 of the First Step Act. 1

We have considered Iverson’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

1 Despite Iverson’s ineligibility for relief under either section 401 or 404, the district court observed that he was not foreclosed from seeking compassionate release pursuant to

(c)(1)(A). See Iverson,

, at *2 n.2. Recent amendments to the Sentencing Guidelines set forth the circumstances in which a court may consider a change in the law in evaluating a defendant’s motion for compassionate release. See U.S.S.G. § 1B1.13(b)(6), (c) (2023). We, like the district court, express no opinion on the merits of any such motion. See United States v. Roper,

(9th Cir. 2023) (noting pre-amendment circuit split as to whether a change in decisional law can be considered an extraordinary and compelling reason for a sentence reduction). 6