                                                                               FILED
                                                                   United States Court of Appeals
                                     PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     August 18, 2020

                                                                       Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                          Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                        No. 19-6102

 ARTHUR MORRIS MANNIE, JR.,

       Defendant - Appellant.

 –––––––––––––––––––––––––––––––––––

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                        No. 19-6111

 MICHAEL DEWAYNE MAYTUBBY,

       Defendant - Appellant.
                      _________________________________

                    Appeal from the United States District Court
                       for the Western District of Oklahoma
               (D.C. Nos. 5:09-CR-00289-F-1 and 5:06-CR-00136-R-1)
                       _________________________________

Susan M. Otto, Federal Public Defender (Paul Antonio Lacy, Assistant Federal Public
Defender, with her on the brief), Oklahoma City, Oklahoma for Defendants-Appellants.

Timothy W. Ogilvie, Assistant United States Attorney (Timothy J. Downing, United
States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-
Appellee.
                        _________________________________
Before HARTZ, EBEL, and MATHESON, Circuit Judges.
                  _________________________________

EBEL, Circuit Judge.
                       _________________________________

      To alleviate some of the impacts caused by the statutory sentencing disparity

between crack cocaine and powder cocaine offenses, Congress passed the Fair

Sentencing Act of 2010 (“2010 FSA”) which, among other things, increased the

quantity of crack cocaine required to trigger certain statutory penalties. In 2018,

Congress passed the First Step Act (“2018 FSA”), which, inter alia, made the Fair

Sentencing Act’s benefits retroactively applicable to offenders who committed

offenses prior to the 2010 FSA’s effective date of August 3, 2010.

      We have consolidated these appeals for the purpose of disposition, and we

address the requirements for reducing an offender’s sentence under section 404 of the

2018 FSA. We hold that an offender is eligible to seek relief under the 2018 FSA if

he or she was convicted of and sentenced for (1) a violation of a federal criminal

statute, (2) the statutory penalties for which were modified by section 2 or 3 of the

2010 FSA, and (3) that was committed prior to August 3, 2010. We further hold that

our review of the district court’s action on a 2018 FSA motion is for an abuse of

discretion, the same as other post-trial motions. Finally, we hold that when presented

with a 2018 FSA motion for a reduced sentence, the court need not, but may in its

discretion, hold a hearing on the motion.

      Arthur Morris Mannie, Jr., and Michael Dewayne Maytubby moved the district

court for reductions in their sentences pursuant to the 2018 FSA. The district court

                                            2
declined to reduce either sentence; both Mannie and Maytubby appealed. Applying

today’s holdings to the cases at bar, we AFFIRM the district court’s order denying

Mannie’s motion for sentence modification, and we DISMISS Maytubby’s appeal for

lack of standing.

                                  I. BACKGROUND

A. Sentence Modification and the First Step Act of 2018

      In general, once a court has imposed a sentence, the court has no authority to

modify that sentence. However, that is not an absolute rule; Congress has provided

the court with the authority to modify previously imposed sentences in three, very

limited circumstances. The court’s authority to modify a sentence, and the

limitations of that authority, is set forth in 18 U.S.C. § 3582(c). One such exception

permits a court to modify a previously imposed sentence when a modification is

“expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal

Procedure.”1 § 3582(c)(1)(B).

      The specific authority for that exception is found in § 3582(c)(1)(B), which

authorizes the court to implement modifications as directed by statute (or Federal

Rule of Criminal Procedure 35):

      (c) Modification of an imposed term of imprisonment.--The court may
          not modify a term of imprisonment once it has been imposed except
          that--
             (1) in any case--

      1
       The other two exceptions are when there are certain extraordinary and
compelling circumstances, § 3582(c)(1)(A), and when a revision to the U.S.S.G. has
lowered the sentencing range on which an offender’s sentence was based,
§ 3582(c)(2). Neither exception is applicable here.
                                           3
                    ...
                    (B) the court may modify an imposed term of imprisonment
                         to the extent otherwise expressly permitted by statute or
                         by Rule 35 of the Federal Rules of Criminal Procedure[.]

While this exception authorizes the court to implement modifications, it does not

itself provide standards for those modification. Thus, § 3582(c)(1)(B)’s authorization

alone is not sufficient—the court must look elsewhere to find another statute

containing said standards. In this case, those statutes are the Fair Sentencing Act of

2010 and the First Step Act of 2018.

      In 2010, the statutory sentencing guidelines for drug offenses included a 100-

to-1 ratio between sentences imposed for crack cocaine and those imposed for

powder cocaine. There was a growing concern that this disparity was unjustified by

the differences between the two forms of cocaine, and that it was discriminatory

because it led to much higher sentences for offenses dealing with crack cocaine than

those dealing with powder cocaine. Congress sought to reduce that disparity in two

separate statutes, beginning with the Fair Sentencing Act of 2010. Pub L. No. 111-

220, 124 Stat. 2372.

      The 2010 FSA in part reduced the disparity for sentences imposed after the

effective date of that statue by increasing the quantities of crack cocaine required to

subject an offender to a mandatory minimum sentence, id. § 2, and by eliminating the

mandatory minimum sentence for simple possession, id. § 3. Had that statute been in

effect when Mannie and Maytubby were convicted, it would have led to significantly

reduced sentences for both of them. However, Congress did not make the 2010


                                           4
FSA’s sentencing adjustment retroactive, and the Supreme Court has never held it to

be so.

         Congress rectified that inequity when it enacted the First Step Act of 2018,

which retroactively applied the new crack cocaine quantity thresholds to those

offenders who were sentenced prior to the 2010 FSA’s effective date.2 As the

language in the 2018 FSA is short and important to our decision here, we lay it out in

full:

                   SEC. 404. APPLICATION OF FAIR SENTENCING ACT.

         (a) DEFINITION OF COVERED OFFENSE.—In this section, the term
             “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 August 3, 2010.

         (b) DEFENDANTS PREVIOUSLY SENTENCED.—A court that imposed
             a sentence for a covered offense may, on motion of the defendant, the
             Director of the Bureau of Prisons, the attorney for the Government, or the
             court, impose 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.

         (c) LIMITATIONS.—No court shall entertain a motion made under this
             section to reduce a sentence 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 or if a previous motion made
             under this section to reduce the sentence was, after the date of enactment
             of this Act, denied after a complete review of the motion on the merits.
             Nothing in this section shall be construed to require a court to reduce any
             sentence pursuant to this section.




         2
         The 2018 FSA also made the 2010 FSA’s elimination of the mandatory
minimum for simple possession retroactive; but, as that section is not at issue in
either case before us, we do not discuss it further.
                                               5
First Step Act of 2018, Pub. L. 115-391, § 404, 132 Stat. 5194, 5222 (internal

citations omitted). Now, many of those previously ineligible to gain the benefits of

the 2010 FSA can bring a 2018 FSA motion requesting a sentence reduction.

      Congress permitted a broad group of people to bring a 2018 FSA motion—“the

defendant, the Director of the Bureau of Prisons, the attorney for the Government, or

the court,” § 404(b)—and there is no time limit in which it must be brought. Once a

2018 FSA motion has been brought, however, reducing an offender’s sentence is

firmly in the court’s discretion. Congress not only used the permissive “may” when

granting the court authorization to reduce a sentence, § 404(b), but it also expressly

stated that “[n]othing in this section shall be construed to require a court to reduce

any sentence pursuant to this section,” § 404(c).

      The 2018 FSA gives discretion to sentencing courts to reduce a previously

imposed sentence “as if sections 2 and 3 of the [2010 FSA] were in effect at the time

the covered offense was committed.” § 404(b). The 2018 FSA defines a “covered

offense” as “a violation of a Federal criminal statute, the statutory penalties for which

were modified by section 2 or 3 of the [2010 FSA], that was committed before

August 3, 2010.” § 404(a). Offenders who committed a covered offense are now

eligible for the benefits created by the 2010 FSA.

      The 2018 FSA became effective on December 21, 2018, and appeals from

2018 FSA motions are now popping up in circuits across the country.

B. Arthur Mannie



                                            6
      In 2009, Mannie pleaded guilty to one count of possession with intent to

distribute 50g or more3 of crack cocaine, in violation of 21 U.S.C. § 841(a)(1).

Mannie’s conviction carried a statutory mandatory minimum sentence of ten years

and a maximum of life. Because Mannie was a career offender, the United States

Sentencing Guidelines (“U.S.S.G.”) provides an alternate method of calculating his

offense level, which is based on the statutory maximum sentence of the convicted

offense. In Mannie’s case, a statutory maximum of life led to an alternate offense

level of 37 which, after being reduced for Mannie’s acceptance of responsibility,

created an advisory guideline range of 262 months to 327 months. Mannie was

sentenced to 262 months, the bottom of the guideline range.4 In May 2019, Mannie

moved for a reduction in his sentence pursuant to the 2018 FSA.

      Because the 2010 FSA reduced the statutory maximum sentence for Mannie’s

offense from life to forty years imprisonment, his alternate offense level was 34,

rather than 37. This reduction, combined with a reduction for acceptance of

responsibility, resulted in a new advisory guideline range of 188 months to 235

months. Mannie requested a below-guidelines sentence of 120 months or, in the

alternative, a sentence at the bottom of the range, 188 months.



      3
         At the time of Mannie’s trial, the threshold quantity of crack cocaine for a
statutory maximum of a life sentence was 50g; the 2010 FSA increased the threshold
quantity to 280g. The quantity of crack cocaine attributed to Mannie for the purpose
of sentencing is not at issue in this appeal. (Mannie ROA 158.).
       4
         This court affirmed his sentence when it enforced the appeal waiver in
Mannie’s plea agreement. United States v. Mannie, 388 F. App’x 840, 841 (10th Cir.
2010) (unpublished).
                                           7
      After a review of the parties’ written submissions, the sentencing court agreed

that Mannie was eligible to seek relief under the 2018 FSA; however, when “[t]aking

into account all of the [18 U.S.C.] § 3553 sentencing factors, the court conclude[d]

quite readily, that the interest of the public would be ill-served by according this

defendant sentencing relief.” (Mannie ROA 163.) His appeal followed.

      Mannie argues that the district court erred by (1) failing to provide Mannie a

hearing, and (2) declining to reduce Mannie’s sentence. We are not persuaded by

these arguments and find no error by the district court. Therefore, we AFFIRM the

district court’s order denying relief to Mannie under the 2018 FSA.

C. Michael Maytubby

      In 2006, a jury convicted Maytubby of eight counts relating to his participation

in a drug trafficking organization, including one count of conspiracy to distribute

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846. Maytubby was sentenced

to 235 months on the conspiracy count, to run concurrently with 235-month

sentences on two other counts. After including his sentences for the remaining five

counts, Maytubby was sentenced to a total of 295 months, which this court affirmed

on appeal. United States v. Maytubby, 272 F. App’x 749, 751 (10th Cir.)

(unpublished), cert. denied, 555 U.S. 1006 (2008).

      Prior to the instant case, Maytubby obtained some relief from this sentence

through two amendments to the U.S.S.G., which changed Maytubby’s advisory

guideline range. In 2007, Maytubby’s three original 235-month sentences were each

reduced to 188 months, pursuant to Amendment 706. See U.S. Sentencing

                                            8
Guidelines Manual app. C, amend. 706 (U.S. Sentencing Comm’n 2007). Seven

years later, pursuant to Amendment 782, each of Maytubby’s three, modified, 188-

month sentences was further reduced to 151 months. See U.S. Sentencing Guidelines

Manual app. C, amend. 782 (U.S. Sentencing Comm’n 2014). In May 2019,

Maytubby moved for a further reduction in his twice-reduced sentence pursuant to

the 2018 FSA. After reviewing the parties’ written submissions, the sentencing court

denied Maytubby’s motion on the merits.

      Addressing Maytubby’s current request for a further reduction of sentence

under the 2018 FSA, the sentencing court5 first concluded that Maytubby was eligible

to seek relief under the 2018 FSA because he was convicted under federal law of

conspiracy to distribute cocaine base, the penalty for which was modified by section

2 of the 2010 FSA, and he committed this offense prior to August 3, 2010, the

effective date of the 2010 FSA. (Maytubby ROA 272.)

      However, upon reviewing Maytubby’s motion, the sentencing court noted that

the 2018 FSA did not change Maytubby’s advisory guideline range of 151 months to

188 months, as it was calculated at his last sentence modification; thus, the 2018

FSA’s only impact would be a reduction of the statutory mandatory minimum

sentence for conspiracy, from ten years to five years. After considering the

sentencing factors set forth in § 3553(a), the sentencing court determined that


      5
         Maytubby’s original sentence and his two sentence reductions were handled
by Chief Judge Vicki Miles-LaGrange; upon her retirement, Maytubby’s case was
transferred to Judge David L. Russell, who issued the appealed-from order in the
instant case.
                                           9
Maytubby’s previously reduced sentence remained appropriate and declined to

reduce Maytubby’s sentence further. Maytubby moved the sentencing court to

reconsider, which it declined to do. His appeal followed.

       Maytubby argues that the district court erred by (1) treating the lack of change

in his advisory guideline range as dispositive, (2) failing to provide Maytubby a

hearing, and (3) declining to further reduce his sentence. However, we conclude that

even if he were to prevail on these arguments, the court could not give him any

substantive relief because his challenge is only to the length of his sentence, and he is

facing other concurrent sentences for the same or greater amounts of time which are

not being challenged. Thus, we DISMISS Maytubby’s appeal for lack of standing.

                                  II. JURISDICTION

       As explained above, the “district court is authorized to modify a defendant’s

sentence only in specified instances where Congress has expressly granted the court

jurisdiction to do so.” United States v. Baker, 769 F.3d 1196, 1198 (10th Cir. 2014);

see United States v. Spaulding, 802 F.3d 1110, 1124 (10th Cir. 2015) (“[Section]

3582(c) acts as a jurisdictional limitation on the ability of district courts to alter

previously imposed sentences of imprisonment.”). Here, both defendants rely on the

second of these exceptions, § 3582(c)(1)(B), where a reduction is “expressly

permitted by statute.”6 Jurisdiction under § 3582(c)(1)(B) is limited by the express


       6
       Although there was some dispute below as to which exception applied to
2018 FSA motions, all parties now agree that the proper exception is that found in
§ 3582(c)(1)(B).

                                             10
terms of the statute permitting modification—here, that of the 2018 FSA. The 2018

FSA limits both the court’s actions and the movant’s eligibility for relief.7

      As to an offender’s eligibility to move for relief, the 2018 FSA has minimal

requirements. The 2018 FSA allows a court to reduce a sentence imposed for 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 [2010 FSA], that was

committed before August 3, 2010.” § 404(a). Thus, to be initially eligible for relief,

an offender must have been convicted of and sentenced for (1) a violation of a federal

criminal statute, (2) the penalties for which were modified by section 2 or 3 of the

2010 FSA, and (3) that was committed prior to August 3, 2010.

      Although the bar for eligibility is low, the 2018 FSA places two limitations on

the court’s ability to entertain a 2018 FSA motion. “No court shall entertain” a 2018

FSA motion if (1) an offender’s sentence for the covered offense was previously

imposed or reduced in accordance with section 2 or 3 of the 2010 FSA, or (2) the

court has already denied a previous 2018 FSA motion “after a complete review of the

motion on the merits,” § 404(c). These limitations essentially ensure that offenders




      7
         Neither an offender’s eligibility to move for relief nor the court’s discretion
to grant it is restrained by the U.S.S.G.’s advisory guideline range, in contrast to a
§ 3582(c)(2) proceeding. See § 3582(c)(2) (permitting reduction only “if such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission”); see also U.S.S.G. § 1B1.10(b)(2)(A) (Sentencing Commission policy
statement prohibiting a court from reducing a sentencing below the new guideline
range unless the original sentence was also below the guideline range).
                                           11
only get one bite of the apple. An otherwise eligible offender who meets either of

these limitations is rendered ineligible for relief under the 2018 FSA.

      Mannie and Maytubby were convicted of violating federal criminal statutes,

for which they were sentenced according to the statutory penalties in 21 U.S.C.

§ 841(b)(1)(B)(iii) (for Mannie) and 21 U.S.C. § 841(b)(1)(A)(iii) (for Maytubby).

The penalties in both subsections were modified by section 2 of the 2010 FSA. 2010

FSA § 2, 124 Stat. at 2372. Both Mannie and Maytubby committed these crimes

prior to August 3, 2010, the effective date of the 2010 FSA. Neither Mannie nor

Maytubby has previously brought a 2018 FSA motion, and neither sentence was

imposed or previously reduced in accordance with the 2010 FSA. Therefore, both

Mannie and Maytubby are eligible for relief under the 2018 FSA, and

§ 3582(c)(1)(B) gives the court statutory jurisdiction to entertain their motions.

                                  III. DISCUSSION

A.    Maytubby Does Not Have Standing to Bring a 2018 FSA Motion

      While the court has statutory jurisdiction to entertain a 2018 FSA motion, such

a motion must also fall within the scope of the court’s constitutional jurisdiction.

“Article III of the United States Constitution only extends federal judicial power to

cases or controversies.” United States v. Meyers, 200 F.3d 715, 718 (10th Cir.

2000). From this limitation, the U.S. Supreme Court has “deduced a set of

requirements that together make up the ‘irreducible constitutional minimum of

standing.’” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,

125 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

                                           12
Constitutional standing has three requirements: injury in fact, traceability, and

redressability. Meyers, 200 F.3d at 718.

      As noted above, Maytubby’s current sentence for his 2018 FSA covered

offense is 151 months. This sentence runs concurrently with two of Maytubby’s

other convictions for offenses not covered by the 2018 FSA and which would be

unaffected even if he were to prevail on his 2018 FSA claim here. Following oral

argument in these cases, we ordered supplemental briefing addressing whether a live

controversy existed, as Maytubby’s concurrent sentences cannot be modified by the

2018 FSA.8 For the following reasons, we conclude that Maytubby’s appeal does not

present a live controversy.

      An offender who challenges his conviction or his sentence has standing to do

so because “the ongoing incarceration constitutes an injury from which the defendant

seeks relief in satisfaction of Article III.” Meyers, 200 F.3d at 718. Unlike a direct

appeal of a conviction, which challenges the underlying conviction, a motion brought

under the 2018 FSA only challenges the sentence—the length of incarceration; it

does not challenge the collateral consequences of the underlying conviction. Because

the only injury that can be alleged in a 2018 FSA motion is the ongoing




      8
          The question presented in our order for supplemental briefing was:

      Whether this case presents a live case or controversy because any relief
      that may be provided to the defendant upon his challenge to the length of
      his sentence under Count 1 would be illusory since the defendant cannot
      challenge his concurrent sentences under Counts 2 and 6.
                                           13
incarceration, the offender only has standing to bring a 2018 FSA motion to the

extent that the court could redress the offender’s ongoing incarceration.

      Where, as here, an offender has been sentenced concurrently, the court can

only redress the ongoing incarceration to the extent that some portion of the

incarceration is solely dependent on the sentence of the crack cocaine offense that

might be reduced under the 2018 FSA. Put simply, if reducing an offender’s

sentence under the 2018 FSA does not have the effect of actually reducing the

offender’s length of incarceration, then the court cannot redress the offender’s injury

under the 2018 FSA. If the court cannot redress the offender’s injury, then the

offender does not have standing, a live controversy is not present, and the court does

not have jurisdiction.9

      Maytubby’s sentence for his 2018 FSA “covered” crack cocaine offense runs

concurrently with his two sentences for drug offenses not covered by the 2018 FSA.

Although the Sentencing Commission has since lowered the advisory guidelines

ranges for Maytubby’s two drug offense sentences, the court has already reduced said


      9
        This is not to say that no offender who was sentenced for a crack cocaine
offense concurrently with a non-crack cocaine offense will have standing to bring a
2018 FSA motion. Section 3582(c)(1)(B) is not the only statute that provides the
court with jurisdiction to modify a sentence. For example, a sentencing court may
have jurisdiction to reduce an offender’s sentence for non-crack cocaine offenses
under § 3582(c)(2) if the offender’s advisory guideline range has been lowered; and,
the court may undertake such modifications “on its own motion.” Hence, by
exercising its authority under both § 3582(c)(1)(B) and § 3582(c)(2), the court could
actually reduce the offender’s length of incarceration if the concurrent sentences are
reduced as well. As long as it is possible for the court to grant some actual reduction,
an offender will have standing. But that situation is not asserted in the appeal before
us.
                                          14
sentences to the bottom of the current guideline ranges, exercising its authority under

§ 3582(c)(2). In doing so, however, the court reached the limits of its authority under

§ 3582(c)(2), which does not permit a reduction below the current guideline range

unless the original sentence was below the guideline range. See § 3582(c)(2)

(permitting reduction only “if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission”); U.S.S.G. § 1B1.10(b)(2)(A)

(Sentencing Commission policy statement prohibiting a court from reducing a

sentencing below the new guideline range unless the original sentence was also

below the guideline range). Because Maytubby’s original drug offense sentences

were not below the guideline range, and they have since been reduced to the bottom

of the current guideline range, the court has no authority under § 3582(c)(2) to reduce

Maytubby’s drug offense sentences any further.10

      Because neither § 3582(c)(2) nor § 3582(c)(1)(B) gives the court the authority

to reduce Maytubby’s two concurrent sentences, any reduction in the sentence of

Maytubby’s covered offense would not actually reduce the length of Maytubby’s

incarceration.11 Hence, the court cannot redress Maytubby’s injury, and Maytubby’s


      10
          In supplemental briefing, Maytubby seeks to raise an argument under the
sentencing guidelines that a modification of his sentence under Count 1 dealing with
crack cocaine may have affected his sentences for other counts under the guidelines.
But, as we have pointed out previously, the 2010 FSA modified only statutory
provisions under applicable circumstances and made no modifications to the
guidelines. Thus, this argument misses the mark.
       11
          Nor could the court effectively reduce the length of Mannie’s supervised
release, as his term of supervised release for his covered offense runs concurrently
and coextensively with the two other, non-covered offenses. See United States v.

                                          15
2018 FSA motion does not present a live controversy. Therefore, we DISMISS

Maytubby’s appeal for lack of standing.12

B.    The District Court Did Not Abuse Its Discretion in Denying Mannie’s 2018
      FSA Motion for Sentencing Relief

       We now turn to Mannie’s case, which raises two primary issues: (1) what

standard of review applies to appeals of 2018 FSA motions, and (2) whether a court’s

review of a 2018 FSA motion amounts to plenary resentencing. We address these

issues in turn.

       1.   Standard of Review

       This is an issue of first impression for this court. All parties generally agree

that the proper standard of review is for an abuse of discretion. Mannie contends,

however, that because a 2018 FSA motion requires a sentencing court to exercise its

sentencing discretion, we should review the decision below for an abuse of

sentencing discretion, utilizing the two-step approach required after United States v.

Booker, 543 U.S. 220 (2005), and announced in Gall v. United States, 552 U.S. 38,

51 (2007) (noting that when an appellate court reviews a sentence, “[i]t must first



Holloway, 956 F.3d 660, 666 (2d Cir. 2020) (holding that a live controversy
remained in a 2018 FSA proceeding “to the extent that the district court could still
reduce an undischarged term of supervised release”); United States v. Sutton, 962
F.3d 979, 983 (7th Cir. 2020) (same).
       12
          Our ruling as to Maytubby is without prejudice because we are ruling on a
jurisdictional point rather than on the merits of his claim. If, at some future date,
Maytubby’s other concurrent sentences are reduced, perhaps he can renew this claim.
But that particular scenario is not before us today, so we express no opinion on the
law nor do we make any rulings on that hypothetical situation.

                                            16
ensure that the district court committed no significant procedural error”; if the

sentence is procedurally reasonable, “the appellate court should then consider the

substantive reasonableness of the sentence imposed”). We disagree.

         Defendants who are eligible to bring 2018 FSA motions have already had the

opportunity to challenge the district court’s sentencing decisions on direct appeal.13

Because their sentences have already been imposed, the court may only modify their

sentences to the extent authorized by § 3582(c). Thus, this court is not reviewing a

sentencing proceeding, or even a resentencing proceeding, but only a sentence-

modification proceeding. And, upon review of a sentence-modification proceeding,

this court reviews not the propriety of the sentence itself, but the propriety of the

district court’s grant or denial of the motion to reduce the sentence. Moreover, the

2018 FSA itself states that “[n]othing in this section shall be construed to require a

court to reduce any sentence pursuant to this section.” § 404(c). Because the 2018

FSA gives the district court broad discretion to grant or deny the motion, we review

the district court’s decision only for an abuse of that discretion. All of our sister

circuits to consider the proper standard of review for the denial of a 2018 FSA

motion have reached the same conclusion.14


         13
              Or, as in Mannie’s case, they may have waived such a challenge in their plea
deals.
         14
           United States v. Jackson, 964 F.3d 197, 201 (3d Cir. 2020) (“If a defendant
is eligible for a reduced sentence under [the 2018 FSA], a district court’s denial of
relief is reviewed for an abuse of discretion.”); United States v. Gordon, 811 F.
App’x 842, 843 (4th Cir. 2020) (unpublished per curiam) (“This court reviews the
district court’s ruling on a sentence reduction motion for abuse of discretion . . . .”);

                                              17
       2.   The Scope of a 2018 FSA Proceeding

       The court below ruled on Mannie’s 2018 FSA motion on the basis of the

written submissions. (Mannie ROA 149.) Mannie contends that he “should have

been granted the opportunity to be present at a hearing that afforded him the

opportunity to speak directly to the court and to present evidence on the ultimate

issue of whether a reduced sentence should be imposed.” (Opening B. 10.) Whether

the 2018 FSA entitles a movant to a hearing is an issue of first impression for this

circuit; however, all other circuits to address this issue have concluded that the 2018

FSA does not entitle a movant to a hearing. See Jackson, 945 F.3d at 321 (5th Cir.)

(“Jackson suggests that the court should have held a hearing. But nothing in the

[2018] FSA requires it to do so . . . .”); United States v. Barber, __F.3d __, 2020 WL

4035137, at *3 (6th Cir. 2020) (“[I]n First Step Act cases, . . . the formalities of a full

sentencing hearing don’t apply.”); United States v. Hamilton, 790 F. App’x 824, 826

(7th Cir. 2020) (unpublished) (“[N]othing in the First Step Act requires a district

court to hold any sort of hearing.”); United States v. Williams, 943 F.3d 841, 843


United States v. Jackson, 945 F.3d 315, 319 (5th Cir. 2019) (“We hold now that
abuse of discretion generally applies, because the FSA gives the district court broad
discretion in deciding whether to resentence.”); United States v. Flowers, 963 F.3d
492, 497 (6th Cir. 2020) (“The district court’s denial of a motion for sentence
reduction under the First Step Act is reviewed for an abuse of discretion.”); United
States v. Sutton, 962 F.3d 979, 986 (7th Cir. 2020) (“[W]e review the denial of a
First Step Act motion for, at most, an abuse of that discretion.”); United States v.
McDonald, 944 F.3d 769, 771 (8th Cir. 2019) (“We review for an abuse of discretion
the district court’s decision to grant or deny an authorized sentence reduction.”);
United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020) (“We review for abuse
of discretion the denial of an eligible movant’s request for a reduced sentence under
the First Step Act.”).
                                            18
(8th Cir. 2019) (“Because the [2018 FSA] gives district courts discretion to reduce

the sentence and does not mention a hearing, it does not require district courts to hold

a hearing.”); United States v. Kelley, 962 F.3d 470, 479 (9th Cir. 2020) (concluding

“that the First Step Act does not authorize plenary resentencing”); United States v.

Denson, 963 F.3d 1080, 1086–87 (11th Cir. 2020) (holding that a 2018 FSA movant

did not have “a legal right to be present at a hearing before the district court ruled on

his motion”). We agree.

      Whether the 2018 FSA entitles a movant to a hearing is a question of statutory

interpretation, which we review de novo. United States v. Manning, 526 F.3d 611,

614 (10th Cir. 2008). “We begin our analysis by examining the statute’s plain

language and if the meaning of that language is clear, our inquiry is at an end.”

Woods v. Standard Ins. Co., 771 F.3d 1257, 1265 (10th Cir. 2014). Thus, we first

look to the language of the 2018 FSA to determine whether it entitles a movant to a

hearing.

      The 2018 FSA contains three sections, and the first section defines “covered

offense.” § 404(a). Its second section explains who can bring a motion and the type

of reduction permitted. § 404(b) (The court may reduce “as if sections 2 and 3 of the

[2010 FSA] were in effect”). Its third and final section lays out the limitations on the

type of 2018 FSA motions the court may entertain. § 404(c). Save for the

enumerated list of who may bring a 2018 FSA motion, there is no discussion of

procedural requirements in the 2018 FSA. The 2018 FSA simply does not require a

hearing.

                                           19
       Because the court’s jurisdiction to hear a 2018 FSA motion arises from

§ 3582(c)(1)(B), we look to that statute to determine whether it entitles a movant to a

hearing. Section 3582(c)(1)(B) states: “[T]he court may modify an imposed term of

imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of

the Federal Rules of Criminal Procedure.” Just as in the 2018 FSA, there is no

discussion of procedural requirements. Thus, § 3582(c)(1)(B) does not entitle 2018

FSA movants to a hearing.

       Mannie’s argument that he should have had a hearing rests not on statutory

interpretation, but on the importance, at sentencing, of the colloquy between the court

and the defendant. Mannie cites for support our opinion in United States v.

Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc), in which we

addressed the application of plain error review to the denial of a defendant’s right to

allocution. In doing so, however, we confined our analysis to the “denial of

allocution at a defendant’s initial sentencing hearing.” Id. at 1133 (emphasis added).

We do not disagree with Mannie as to the importance of the defendant’s right of

allocution at his initial sentencing; but this is a sentence modification, not an initial

sentencing.15 There are significant differences between the two.



       15
          Although resentencing may provide an additional right to allocution, a 2018
FSA proceeding is not a resentencing. United States v. Lucero, 713 F.3d 1024, 1028
(10th Cir. 2013) (“Sentence modification under § 3582(c) does not amount to
‘resentencing’ . . . .”); United States v. Torres, 99 F.3d 360, 362 (10th Cir. 1996)
(explaining that resentencing does not occur when a defendant seeks a modification
of their sentence as “[t]here has been no vacation of his sentence nor any order for
resentencing”).
                                            20
      First, at an initial sentencing, the Federal Rules of Criminal Procedure require

not only that the defendant be present, but also that the court “address the defendant

personally in order to permit the defendant to speak or present any information to

mitigate the sentence.” Fed. R. Crim. P. 43(a)(3), 32(i)(4)(A)(ii). At a sentence

modification, on the other hand, the defendant need not even be present. Fed. R.

Crim. P. 43(b)(4) (noting that the defendant’s presence is not required for the

“reduction of a sentence under Rule 35 or 18 U.S.C. § 3582(c)”).

      Second, the scope of an initial sentencing differs from that of a sentence

modification. “Unlike original sentencing proceedings, in which a district court must

make a host of guideline application decisions in arriving at a defendant’s applicable

guideline range and then ultimately impose a sentence after reviewing the [18 U.S.C.]

§ 3553(a) factors, proceedings to modify a term of imprisonment previously imposed

are much more limited in character.” United States v. Rhodes, 549 F.3d 833, 840

(10th Cir. 2008). Indeed, when modifying a sentence pursuant to § 3582(c)(1)(B),

the court is limited to only those modifications “expressly permitted by statute.”

Here, that means that the court can only modify a sentence “as if sections 2 and 3 of

the [2010 FSA] were in effect at the time the covered offense was committed.”

§ 404(b). And, of course, a court may only reduce, not increase, the previously

imposed sentence. § 404(b). These differences between an initial sentencing and a

sentence modification support our conclusion that a 2018 FSA movant is not entitled

to a hearing.



                                          21
       Although nothing in the 2018 FSA gives a movant a right to a hearing, how the

district court chooses to proceed on a 2018 FSA motion will ordinarily fall within the

inherent authority of the district court to administer its own docket. Thus, predicated

on that authority and not on the 2018 FSA, the district court may, depending on the

particular circumstances before it, decide to hold a hearing rather than relying on the

legal briefs provided to the court. As the district court has broad discretion when

exercising its inherent authority, we review any such exercise for an abuse of that

discretion.

       3.     Mannie’s 2018 FSA Proceeding Below

       Mannie asserts that he should have been provided a hearing. As just

explained, because Mannie does not have a right to a hearing under the 2018 FSA,

we review the court’s decision to proceed without a hearing only for an abuse of

discretion. We have reviewed the record before us and, on that record, find no abuse

of discretion in the district court’s decision to proceed on the legal briefings provided

to the court.

       Mannie also argues, separate from his request for a hearing, that the district

court erred in not reducing his sentence. Mannie’s primary contention is that the

district court placed too much focus on the static, historical facts from his initial

sentencing, and not enough weight on post-sentencing conduct.16 We disagree.


       16
         Mannie also contends that the court failed specifically to address his request
for a 188-month sentence. During the proceedings below, Mannie filed a pro se brief
requesting a 188-month sentence (the bottom of the guideline range), and his

                                            22
      The district court provided a thorough and reasoned explanation as to why it

declined to reduce Mannie’s sentence. Even when explaining the imposition of an

initial sentence, the sentencing court need only “set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned basis

for exercising his own legal decisionmaking authority.” Rita v. United States, 551

U.S. 338, 356 (2007). The court acknowledged the facts before it that Mannie argued

would support a sentence reduction. It recognized Mannie’s rehabilitative efforts,

including earning his GED and completing additional educational courses. It also

noted that Mannie was sixty-three years old and had a relatively clean record while

incarcerated, both of which lean towards granting relief.

      The court also discussed the facts that weighed against granting a sentence

reduction. Although Mannie asserts that his career offender status sufficiently

accounts for his criminal history and recidivism, the district court may still properly

consider “the nature and circumstances of the offense and the history and

characteristics of the defendant,” which are not fully considered in his career

offender status. 18 U.S.C. § 3553(a)(1). Mannie’s criminal career spanned almost

thirty years—from his mid-20s to his mid-50s—ending only upon his incarceration,

and it “has included notable brutality, in addition to dope dealing,” against “virtually



appointed counsel filed a brief requesting a 120-month sentence (the new statutory
minimum), both of which the court considered. By determining that no sentencing
relief was warranted at all, however, the district court properly rejected both
sentencing requests.

                                           23
defenseless victims.”17 (Mannie ROA 163.) The court additionally pointed out that

while Mannie’s initial sentence was at the bottom of the guideline range, the choice

to do so “was intentional and was not merely the result of reflexively defaulting to a

guideline sentence.” (Id. 162.)

      In light of all considerations, the court concluded that sentencing relief was not

warranted.18 The court presented a thorough and reasonably articulated basis for its

conclusion, and we cannot say that it abused its discretion in reaching that

conclusion.19 Thus, we AFFIRM the district court’s denial of Mannie’s 2018 FSA

motion for sentence reduction.




      17
          Mannie’s prior convictions include second degree murder, aggravated
battery, battery, carrying a concealed weapon, possession of an unregistered sawed-
off shotgun, and attempted possession of cocaine with intent to sell. (Mannie ROA
160.)
       18
          Notwithstanding the fact that neither the 2018 FSA nor § 3582(c)(1)(B)
reference the 18 U.S.C. § 3553(a) factors, they are permissible, although not
required, considerations when ruling on a 2018 FSA motion. As the district court
explained in its review below, the § 3553(a) factors have been considered by
sentencing courts long before they were codified. “There is nothing in the 2018
[FSA] or § 3582(c)(1)(B) that precludes application of common sense, regardless of
whether a common-sense consideration also happens to be codified in § 3553.”
(Mannie ROA 158.)
       19
          Mannie asserts for the first time in his reply brief that because his new
amended guideline range is 188 months to 235 months, when the district court
declined to reduce his 262-month sentence, this amounted to “a de facto deviation
from the proper guideline range of punishment without adequate explanation.”
(Reply B. 2.) Notwithstanding the fact that “a party waives issues and arguments
raised for the first time in a reply brief,” In re FCC 11-161, 753 F.3d 1015, 1070
(10th Cir. 2014), and assuming without deciding that a “de facto deviation” requires
explanation, the court’s explanation below as to the propriety of Mannie’s 262-month
sentence is sufficient to satisfy any such requirement.
                                          24
                              IV. CONCLUSION

      For the foregoing reasons, we DISMISS Maytubby’s appeal for lack of

standing, and we AFFIRM the district court’s denial of Mannie’s 2018 FSA motion.




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