                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0059n.06

                                        Case No. 19-5312

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Jan 28, 2020
UNITED STATES OF AMERICA,                           )                  DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
LAZELLE MAXWELL,                                    )       KENTUCKY
                                                    )
      Defendant-Appellant.
____________________________________/

Before: GUY, SUTTON, and GRIFFIN, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge. Lazelle Maxwell is in prison, but he believes

Congress provided a path for him to get out. For the past ten years, Maxwell has been serving a

thirty-year sentence for a crack cocaine offense. A change in the law prompted him to ask the

district court to appoint him an attorney so that he could seek relief. The district court construed

the request as a motion for relief itself and denied it. Maxwell now appeals from that denial. We

vacate the district court’s order and remand the case.

                                       I. BACKGROUND

       In 2009, a jury convicted Maxwell of two crimes: conspiracy to distribute crack cocaine

and conspiracy to distribute heroin. 21 U.S.C. § 846. The district court sentenced him to 240

months of imprisonment on the crack cocaine count and 120 months on the heroin count. Those

terms were to be served consecutively, so Maxwell received a total sentence of 360 months. After
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an unsuccessful direct appeal, he sought collateral relief, pro se, under 28 U.S.C. § 2255. See

United States v. Shields, 415 F. App’x 692 (6th Cir. 2011). The district court denied his motion

to vacate but granted him a limited certificate of appealability.

       When he appealed, we granted his request for counsel and ultimately determined that his

trial attorney had deficiently failed to argue that the two counts were multiplicitous. Maxwell v.

United States, 617 F. App’x 470, 473 (6th Cir. 2015). On remand, the district court resentenced

Maxwell on only the crack cocaine count, but this time rendered a 360-month sentence for that

count, rather than the 240-month sentence Maxwell had previously received, thus leaving his total

sentence unchanged. Maxwell then appealed through appointed counsel, but we affirmed the new

sentence. United States v. Maxwell, 678 F. App’x 395, 397 (6th Cir. 2017).

       The year after we rendered our decision, the First Step Act became law. First Step Act of

2018, Pub. L. 115-391, December 21, 2018, 132 Stat. 5194. Among other things, the Act “allows

courts to apply § 2(a) of the Fair Sentencing Act retroactively.” United States v. Beamus, 943 F.3d

789, 791 (6th Cir. 2019). That means certain prisoners serving sentences for crack-cocaine

offenses can have their sentences reduced. See Fair Sentencing Act of 2010, § 2(a), Pub. L. 111-

220, August 3, 2010, 124 Stat. 2372, 2372 (increasing threshold quantities from 5 and 50 grams to

28 and 280 grams, respectively).

       Maxwell quickly attempted to take advantage of the new law. In February 2019, he mailed

the following one-page letter to the district court:

       Judge Reeves,
       I, Lazelle Maxwell, Case No. 2:09-cr-33-DCR, Reg. No. 17943-039, request
       Appointment of counsel to have my case considered pursuant to Section 404(b) of
       the FIRST STEP ACT signed into Law on December 21, 2018, in which made the
       Fair Sentencing Act retroactive for defendants sentenced prior to August 2010.
       I reasonably believe I may be eligible for resentencing and possibly immediate
       release.


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Soon after, the district court entered a memorandum opinion and order explaining that it would

treat the letter as both “a motion to appoint counsel and a request for review of his case under the

2018 Act.” United States v. Maxwell, No. CR 2:09-033-DCR, 2019 WL 1320045, at *1 (E.D. Ky.

Mar. 22, 2019). After a lengthy analysis, the court determined that Maxwell was not eligible for

a sentence reduction and thus the appointment of counsel “would be inappropriate and a waste of

resources.” Id. at *4. Maxwell now appeals from that order.

                                        II. DISCUSSION

       The district court erred when it construed the letter as a motion for review and resolved it

without further briefing. The touchstone of any given motion is the relief it seeks. See Fed. R.

Civ. P. 7(b); see also 5 Wright & Miller, Federal Practice and Procedure § 1190 (3d ed. 2004)

(“[A] ‘request’ for an admission under Rule 36 and a ‘demand’ for a jury trial under Rule 38(b)

are not considered motions simply because they are not applications to the court for an order.”).

Maxwell’s letter sought only one form of relief: an appointment of counsel. It did not ask the court

to review his case and made no arguments on that score. Certainly, there are times when a court

must connect the dots laid down by a pro se filing. In doing so, however, the court ought not

deprive the filing party of the opportunity to make his arguments. See Ross v. Moffitt, 417 U.S.

600, 612 (1974) (recognizing the imperative “that indigents have an adequate opportunity to

present their claims fairly within the adversary system”). After all, “[t]he adversary process could

not function effectively without adherence to rules of procedure that govern the orderly

presentation of facts and arguments to provide each party with a fair opportunity to assemble and

submit evidence to contradict or explain the opponent’s case.” Taylor v. Illinois, 484 U.S. 400,

410–11 (1988). And “[t]ruth . . . is best discovered by powerful statements on both sides of the

question.” United States v. Cronic, 466 U.S. 648, 655 (1984) (quoting Lord Eldon).



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       Foregoing that process would work a particular prejudice in this context. The First Step

Act gives defendants only one bite at the apple. It does not allow a court even to entertain a motion

for resentencing if a previous motion was “denied after a complete review of the motion on the

merits.” First Step Act of 2018, § 404(c). It is not immediately clear what constitutes a complete

review on the merits, but the district court’s order would arguably qualify. Although the court

concluded that the Act was not applicable to Maxwell, it nonetheless provided an alternative

rationale when it stated, “Even if Maxwell was eligible for a sentence reduction . . . a reduction is

not appropriate . . . .” Maxwell, 2019 WL 1320045, at *4. We often take such alternative findings

into account, including in Maxwell’s previous appeal. See Maxwell, 678 F. App’x at 396; cf.

Beamus, 943 F.3d at 791 (observing that the district court did not reach the merits when it when it

concluded only that the career-offender defendant was ineligible for relief). What is clear is that

defendants seeking First-Step relief do not get a second bite at the apple. And by construing the

letter as a motion, and then resolving it on the perceived merits, the district court might have

deprived Maxwell of the first bite, too.

       The Act’s emphasis on motions frames our approach to resolving this appeal. A defendant

may be resentenced under Section 404 only “on motion of the defendant, the Director of the Bureau

of Prisons, the attorney for the Government, or the court.” First Step Act of 2018, § 404(b). We

conclude that no motion occurred. Maxwell did not file a motion seeking relief under Section 404

because his letter made no arguments and sought no relief beyond the appointment of an attorney.

See Fed. R. Civ. P. 7 (“[A] motion must . . . state with particularity the grounds for seeking the

order[] and state the relief sought.”). And the district court was not acting on its own motion, but

merely acting on what it perceived was Maxwell’s motion. There being no motion by anyone, the

district court’s order denying relief under Section 404 has no legal effect. We will therefore not



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consider whether the denial was harmless, for there was truly no denial at all. Consequently,

Section 404(c)’s previous-motion limit poses no bar for Maxwell at this time.

        Maxwell did unambiguously request that the district court appoint counsel for him. Both

parties agree that neither the Constitution nor statute entitled Maxwell to appointed counsel,

leaving it to the district court to use its discretion. “A district court abuses its discretion when it

applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly

erroneous findings of fact.” United States v. Mandoka, 869 F.3d 448, 452–53 (6th Cir. 2017)

(quoting United States v. Fowler, 819 F.3d 298, 303 (6th Cir. 2016)).

        That is what happened here. The district court denied Maxwell’s request for one reason:

Maxwell was ineligible for relief. Maxwell, 2019 WL 1320045, at *4, *5. The court’s reasoning

rested on our decision in United States v. Riley, 726 F.3d 756 (6th Cir. 2013). See id. at *3–4. As

it turns out, the district court was wrong. See Beamus, 943 F.3d at 791–92 (noting that “[t]he text

of the First Step Act contains no freestanding exception for career offenders” and recognizing that

the “decision[] in Riley . . . do[es] not govern resentencing under the First Step Act.”). “And a

decision based upon a legal mistake is an abuse of discretion.” United States v. Cota-Luna, 891

F.3d 639, 652 (6th Cir. 2018) (Kethledge, J., concurring in the judgment) (citing Mandoka, 869

F.3d at 452–53). We will therefore remand the case so that the district court may reconsider

Maxwell’s request.1

        Our decision to remand brings us finally to Maxwell’s argument that his case should be

reassigned to a different judge. The district court was clear about Maxwell’s prospects for success:

        Even if Maxwell was eligible for a sentence reduction . . . a reduction is not
        appropriate. . . . [A] sentence of less than 360 months would not provide proper
        punishment, protection to the public, or deterrence (either general or specific).
        Instead, a lesser sentence would unduly diminish the severity of Maxwell’s crime.

1
 Maxwell has proceeded with retained counsel on appeal but nonetheless seeks appointed counsel upon remand. The
district court may wish to solicit additional briefing on the matter before ruling again.

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Case No. 19-5312, United States v. Maxwell


        Ultimately, under 18 U.S.C. § 3553(a), 360 months of imprisonment is the
        minimum term that should be imposed. That was true in January 2010 and
        November 2015, and it remains true today.

Maxwell, 2019 WL 1320045, at *4. In Maxwell’s view, the judge has prejudged his case, thus

requiring reassignment. The government’s sole rejoinder is that remand is unnecessary, regardless

of the assigned judge. Given that we are remanding the case, however, the government’s argument

is irrelevant.

        Reassignment is an extraordinary power—rarely invoked and then only with the greatest

reluctance. Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006). In deciding whether to

do so, we consider three things:

        (1) whether the original judge would reasonably be expected to have substantial
        difficulty in putting out of his or her mind previously expressed views or findings;
        (2) whether reassignment is advisable to preserve the appearance of justice; and
        (3) whether reassignment would entail waste and duplication out of proportion to
        any gain in preserving the appearance of fairness.

Id.

        Reassignment is unwarranted here. To begin, we are remanding only so that the district

court may reconsider its decision about appointed counsel. On that matter, the district court has

given no indication of bias or an inability to put aside prior views. The court’s basis for its denial

was Maxwell’s perceived ineligibility, which was “a misapprehension that this opinion has cured.”

Martin v. United States, 889 F.3d 827, 836 (6th Cir. 2018). “We are therefore ‘satisfied that the

judge will re-visit the matter with a completely open mind.’” Id. (quoting United States v. Garcia-

Robles, 640 F.3d 159, 168 (6th Cir. 2011)).

        Evidently, Maxwell does intend to file a proper motion seeking relief under the First Step

Act. Should he do so, however, the First Step Act does not entitle him to a fresh review in the way

a remand for resentencing might. The First Step Act merely unlocks the door to resentencing so

long as the crime “was committed before August 3, 2010,” and its “statutory penalties . . . were

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modified by section 2 or 3 of the Fair Sentencing Act of 2010.” First Step Act of 2018, § 404(a).

But it is still up to the district court to open that door. See First Step Act, § 404(c) (“Nothing in

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

Generally speaking, we find “a benefit to having the district court judge who presided over the

defendant’s trial review the defendant’s subsequently filed” motions for collateral relief, and allow

the judge to “rely on his or her recollections of the criminal proceedings” in making a decision.

Solomon, 467 F.3d at 935. In the event that Maxwell knocks at the door, we trust that the district

court will heed its duty to consider both the factors in § 3553, along with Congress’s significant

decision to allow prisoners to retroactively benefit from the Fair Sentencing Act.

        We therefore VACATE the district court’s order of March 22, 2019 and REMAND the

case.




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