NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-1969 _____________

UNITED STATES OF AMERICA

v.

DEVLON SAUNDERS, a/k/a Dev, a/k/a Shawn, Appellant _____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No.: 1:10-cr-00054-001) District Judge: Honorable Yvette Kane _____________________________________

Submitted under Third Circuit L.A.R. 34.1(a) November 13, 2020

(Opinion Filed: December 4, 2020)

Before: HARDIMAN, SCIRICA, AND RENDELL, Circuit Judges. ___________

O P I N I O N* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RENDELL, Circuit Judge.

Devlon Saunders challenges the District Court’s denial of his motion for a

sentence reduction under Section 404 of the First Step Act of 2018,

Stat. 5194 (“Resentencing Motion”). Section 404 provides that district courts can

reduce the sentences of defendants who were convicted of offenses for which the Fair

Sentencing Act of 2010 reduced the penalties. Section 404(c) precludes a motion under

this section “if the sentence was previously imposed or previously reduced in accordance

with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010

(Public Law 111–220;

).” § 404(c), 132 Stat. at 5222. Because we agree

with the District Court that Saunders was sentenced “in accordance with” the Fair

Sentencing Act, we will affirm the District Court’s denial of Saunders’ Resentencing

Motion.

I. FACTUAL BACKGROUND

In July 2010, Saunders moved to change his plea to guilty regarding one count of

conspiracy to distribute and possess with intent to distribute fifty grams and more of

cocaine base and marijuana, in violation of

. The penalties for this

offense are derived from

. See

.

The Fair Sentencing Act was enacted in August 2010. The Fair Sentencing Act of

2010 increased the drug weights of crack cocaine required to trigger certain mandatory

statutory penalties. Before its enactment, the statutory range for an offense which

involved 50 grams or more of crack cocaine was ten years to life imprisonment. See

(2006); Fair Sentencing Act of 2010,

(a)(1), 124

, 2372. After its enactment, the statutory range for the same quantity became

five to forty years imprisonment. Id.;

(b) (2018).

The District Court accepted Saunders’ plea on August 3, 2010.

In September 2010, for purposes of Saunders’ Presentence Investigation Report

(“PSR”), the U.S. Probation Officer applied the 2009 version of the Sentencing

Guidelines. Probation calculated Saunders’ custody range as 360 months to life and

identified the statutory penalties as ten years to life imprisonment.

The United States Sentencing Commission promulgated amendments to the

Guidelines corresponding to the reduced statutory penalties under the Fair Sentencing

Act. See U.S. Sent’g Guidelines Manual, Supp. § 2D1.1(c) (U.S. Sent’g Comm’n 2010).

These revised Guidelines became effective on November 1, 2010.

In the sentencing memorandum filed in February 2011, counsel for Saunders

raised multiple objections to the PSR. Specifically, counsel argued that the Guidelines

that correspond to the reductions in the Fair Sentencing Act of 2010 should have been

applied instead of the 2009 Guidelines. Counsel noted that the 2010 Guidelines were

promulgated in November 2010 and effective immediately. The 2010 Guidelines

reduced Saunders’ base offense level from 38 to 34.

Saunders was sentenced on March 3, 2011 to 180 months imprisonment, a three-

year term of supervised release, a $1,000 fine, and a $100 special assessment. In the

Statement of Reasons, the Court acknowledged that it was applying the 2010 Guidelines.

Saunders appealed his sentence. We affirmed in an opinion filed on January 30,

2012. On November 23, 2015, the District Court resentenced Saunders to a term of 3 imprisonment of 152 months based on a motion to reduce his sentence under U.S.

Sentencing Guidelines Manual, 2014 Supp. to App. C, Amendment 782 (U.S. Sent’g

Comm’n 2014). After Saunders sent a letter to the District Court in November 2019

seeking relief under the First Step Act, appointed counsel filed a brief in support of

Saunders’s Resentencing Motion on March 20, 2020.

II. PROCEDURAL BACKGROUND

The District Court denied Saunders’ Resentencing Motion because it had applied

the Fair Sentencing Act in sentencing him. The District Court noted that “at sentencing,

the Court explicitly stated that it would apply the 2010 Guidelines Manual to Defendant.”

App. 8. The Court further explained that it is of no consequence that Saunders’ offenses

and guilty plea occurred before the enactment of the Fair Sentencing Act because the

2010 Guidelines that incorporated the changes made by the Fair Sentencing Act were

applied at his sentencing. The District Court also rejected Saunders’ argument that it had

sentenced him based on the heightened statutory range. Thus, the District Court decided

that Section 404 precluded his motion.

III. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under

, First Step Act § 404,

and

(c)(1)(B). See United States v. Easter,

(3d Cir.

2020). This Court has jurisdiction pursuant to

(a) and

.

As to the proper interpretation of a statute, our review is plenary. See United States v.

Hodge,

(3d Cir. 2020).

4 IV. DISCUSSION

We agree with the District Court that Saunders cannot seek relief under Section

404 of the First Step Act because his sentence was previously imposed in accordance

with the Fair Sentencing Act.

The First Step Act provides that “[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.” § 404(b), 132

Stat. at 5222. Section 404(a) defines “covered offense” 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[.]” § 404(a), 132 Stat. at 5222. Under Section 2 of the Fair

Sentencing Act, Saunders would be subject to a statutory range of five to forty years.

See Fair Sentencing Act of 2010,

(a)(1),

, 2372.

However, Section 404(c) of the First Step Act prohibits resentencing under Section 404

“if the sentence was previously imposed or previously reduced in accordance with the

amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (

;

).” § 404(c), 132 Stat. at 5222.

Saunders was sentenced “in accordance with” the Fair Sentencing Act of 2010.

Saunders’ counsel argued that the 2010 Guidelines “implementing the provisions of the

Fair Sentencing Act” should apply because they were promulgated in November 2010

and effective immediately. The District Court accepted Saunders’ counsel’s argument.

The District Court explicitly stated in the Statement of Reasons that the 2010 Guidelines

applied. 5 Saunders argues that he is nonetheless eligible for relief because the statutory

penalties for his offense were modified by the Fair Sentencing Act. He argues that

eligibility under Section 404 turns on whether the statutory penalties were modified, not

whether the corresponding Guidelines range was applied. The Court did not

acknowledge the revised statutory penalties in the Statement of Reasons, so Saunders

also posits that he is not subject to Section 404(c) because he could not have been

sentenced “in accordance with” the Fair Sentencing Act.

Saunders’ argument is unavailing. The Court explicitly applied the 2010

Guidelines at sentencing and sentenced him to 180 months imprisonment. Saunders

provides no support to show that the statutory penalties affected his sentence. The Court

explicitly stated, “I think a guideline sentence is not only appropriate but even generous

under the circumstances. I believe that sentencing objectives will be met by a sentence

that is within the guideline range.” App. 75. Saunders’ sentence is within the 2010

Guidelines range and, importantly, it is significantly above both statutory minimums.

Saunders also acknowledged in his sentencing memorandum that the mandatory

minimum was not at issue in his case.

Saunders concedes that the District Court could refuse to exercise its discretion to

resentence him under Section 404(b) because the 2010 Guidelines were applied in

calculating his sentence. Still, he argues that the Court erred in finding him ineligible

under Section 404(a). Saunders’ attempt to reframe Section 404(c) as a separate issue for

the Court’s discretion, rather than a limitation on relief, contradicts the plain language of

the text. “No court shall entertain a motion made under this section to reduce a sentence 6 if . . .” unequivocally restricts relief under Section 404. See United States v. Jackson,

, 205 n.11 (3d Cir. 2020) (recognizing “a few specific limitations found within

the First Step Act,” and citing Section 404(c)).

At sentencing, the Court recognized that the penalties for Saunders’ offense

changed following the Fair Sentencing Act of 2010 and sentenced Saunders according to

the corresponding Guidelines. This renders Saunders ineligible for relief under Section

404 of the First Step Act.

V. CONCLUSION

For these reasons, we will affirm the District Court’s order denying Saunders’

Resentencing Motion.

7