    Case: 19-20346    Document: 00515238607      Page: 1   Date Filed: 12/16/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                  No. 19-20346                     FILED
                                                            December 16, 2019
                                                              Lyle W. Cayce
                                                                   Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

ODIS LEE JACKSON,

                                          Defendant–Appellant.



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




Before DAVIS, SMITH, and COSTA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      The district court sentenced Odis Lee Jackson to life in prison following
his drug conviction in 2003. Since then, Jackson has filed numerous motions
seeking a reduced sentence. His latest is under the First Step Act of 2018
(“FSA”), Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). The district
court denied the motion but initially failed to provide reasons. On limited
remand, the court explained that it exercised its discretion not to resentence.
Jackson appeals, and we affirm.
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                                      No. 19-20346
                                             I.
                                             A.
       Seventeen years ago, a jury found Jackson guilty of two drug-related
counts: possession with intent to distribute fifty grams or more of crack, 1 in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2; and con-
spiracy to do the same, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and
846. The jury was told that, to convict Jackson on each count, his offense had
to involve at least fifty grams of crack. This court affirmed on direct appeal.
United States v. Jackson, 86 F. App’x 722, 723 (5th Cir. 2004) (per curiam).

       The version of § 841(b)(1)(A)(iii) in effect at the time required that, to
trigger a mandatory minimum of ten years’ imprisonment and a maximum of
life, the offense involve only fifty grams of a substance containing cocaine base.
If, however, the defendant had two or more felony drug convictions, the manda-
tory sentence was life in prison. Id. Jackson had several such convictions, so
the government requested a sentencing enhancement under 21 U.S.C. § 851.
The court held that it applied and thus handed Jackson his mandatory life
sentence plus ten years’ supervised release.

       Seven years after Jackson’s sentencing, Congress enacted the Fair Sen-
tencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). Section 2
amended § 841(b)(1)(A)(iii) (Jackson’s statute of conviction) by increasing the
fifty-gram threshold to 280, and it similarly amended § 841(b)(1)(B)(iii) by
increasing the threshold quantity from five to twenty-eight grams.                      See
124 Stat. at 2372. Thus, if Jackson had committed the offense after the Fair
Sentencing Act was in effect, the jury’s finding of fifty or more grams would
have triggered only the more relaxed penalties in § 841(b)(1)(B)(iii) (2000). The


       1The statutory language is “a mixture or substance . . . which contains cocaine base,”
21 U.S.C. § 841(b)(1)(A)(iii), sometimes called “crack.”
                                             2
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                                  No. 19-20346
Act wasn’t retroactive, however, so Jackson couldn’t reap the benefit.

      That changed with the passage of the FSA, which gave sentencing courts
discretion to “impose a reduced sentence as if section[] 2 . . . of the Fair Sen-
tencing Act . . . were in effect at the time the covered offense was committed.”
FSA, § 404(b).

                                        B.
      In April 2019, Jackson moved for resentencing under the FSA. He con-
tended that he was eligible, since his offense was “a violation of a Federal crim-
inal statute, the statutory penalties for which were modified by section 2 or 3
of the Fair Sentencing Act of 2010.” Id. § 404(a). Noting that the jury had
found only that his offense involved fifty grams or more, Jackson maintained
that, with the Fair Sentencing Act applied retroactively, he would have been
subject only to the penalty provisions of § 841(b)(1)(B)(iii), with its new thresh-
old of twenty-eight grams. See 124 Stat. at 2372. The government opposed
resentencing.

      The district court denied the motion but failed to say why. On limited
remand, it explained that it had assumed, without deciding, that Jackson had
a “covered offense” under section 404(a). Regardless, for three reasons, it exer-
cised its discretion not to reduce the sentence. First, “Jackson’s current sen-
tence would still [have] fall[en] within the statutory range provided by 21
U.S.C. § 841 and the [FSA].” Because of Jackson’s prior convictions, his stat-
utory penalty range would have been ten years to life, with at least eight years’
supervised release. See § 841(b)(1)(B)(iii) (2000). His life sentence, then, still
fell within the permissible range. Second, Jackson had played a central role in
the underlying offense. Third, his numerous previous convictions earned him
the highest criminal history score in the federal system.


                                        3
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                                       No. 19-20346
                                              II.
       This court has not yet decided what standard of review applies to rulings
on motions to resentence under the FSA. We hold now that abuse of discretion
generally applies, because the FSA gives the district court broad discretion in
deciding whether to resentence. 2 But to the extent the court’s determination
turns on “the meaning of a federal statute” such as the FSA, our review is de
novo. Hegwood, 934 F.3d at 417.

                                              A.
       The first inquiry in evaluating a motion under section 404 is whether the
defendant has a “covered offense.” See FSA, § 404(a). The FSA defines such
an 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 of 2010 . . .
that was committed before August 3, 2010.” Id.

       The government’s view of the meaning of “covered offense” is less than
clear. At the district court, the government appeared to contend that Jackson’s
offense wasn’t covered because the presentence investigation report (“PSR”)
found him responsible for 402.2 grams of crack, meaning that he exceeded even
the new 280-gram requirement. But the government’s briefing on appeal
seems to concede that Jackson’s offense is covered.

       In other cases, the government has contended that “what counts as a
covered offense necessarily turns on facts specific to the defendant’s offense,


       2 See FSA, § 404(c) (“Nothing in this section shall be construed to require a court to
reduce any sentence pursuant to this section.”). We’ve recognized that section 404 is similar
to 18 U.S.C. § 3582(c)(2), which generally permits resentencing of a defendant whose original
sentence was based on a range later lowered by the Sentencing Commission. See United
States v. Hegwood, 934 F.3d 414, 418 (5th Cir.), cert. denied, 140 S. Ct. 285 (2019). Crucially,
“we review the decision whether to reduce a sentence under § 3582(c)(2) for abuse of discre-
tion.” United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009) (emphasis added). We see
no reason to treat the FSA differently.
                                               4
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                                     No. 19-20346
not limited to what was charged in the indictment.” United States v. White,
2019 WL 3228335, at *2 (S.D. Tex. July 17, 2019) (quotation marks removed).
On that theory, if the jury convicts on a count requiring a showing of fifty or
more grams, but the PSR later finds that, say, 500 grams were involved, then
the defendant doesn’t have a “covered offense,” since the drug quantity as
stated in the PSR exceeds even the new 280-gram threshold. See id.

      That approach doesn’t comport with the ordinary meaning of the statute,
however. 3 As stated above, a “covered offense” is “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.” FSA, § 404(a) (emphasis added). The “penalties clause” is the portion
in italics. For the government’s approach from previous cases to work, the
penalties clause must modify “violation,” not “Federal criminal statute.” But
for at least three reasons, the better reading is that it modifies “Federal crim-
inal statute.” It follows that whether an offense is “covered” depends only on
the statute under which the defendant was convicted.

      First, “[a] general rule of statutory interpretation is that modifiers
attach to the closest noun; courts should not interpret statutes in such a way
as to ‘divorce a noun from the modifier next to it without some extraordinary
reason.’” United States v. Wirsing, 943 F.3d 175, 185 (4th Cir. 2019) (quoting
Lopez v. Gonzales, 549 U.S. 47, 56 (2006)). The penalties clause appears closer
to “Federal criminal statute” than to “violation,” so it modifies the former.

      Second, the use of the past tense—“were modified”—in the penalties



      3  See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (“As in any case of
statutory construction, our analysis begins with the language of the statute. And where the
statutory language provides a clear answer, it ends there as well.” (quotation marks and
citations omitted)).
                                            5
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                                      No. 19-20346
clause “confirms that the clause was intended to modify ‘statute,’ not ‘viola-
tion.’” United States v. Rose, 379 F. Supp. 3d 223, 229 (S.D.N.Y. 2019). The
Fair Sentencing Act wasn’t retroactive when first passed, so it couldn’t “have
‘modified’ any penalties imposed for violations ‘committed before August 3,
2010.’” Id. (quoting FSA, § 404(a)). Instead, “the only ‘statutory penalties’ that
the Fair Sentencing Act could have modified were the crack-cocaine penalties
provided in the Controlled Substances Act” itself. Id.

       Finally, the penalties clause refers to “statutory penalties.”                 FSA,
§ 404(a) (emphasis added). The word “statutory” isn’t superfluous; instead, it
makes doubly clear that Congress intended to refer only to the statute under
which the defendant was convicted. See Hohn v. United States, 524 U.S. 236,
249 (1998) (“We are reluctant to adopt a construction making another statutory
provision superfluous.”).

       We thus conclude that whether a defendant has a “covered offense”
under section 404(a) depends only on the statute under which he was con-
victed. If he was convicted of violating a statute whose penalties were modified
by the Fair Sentencing Act, then he meets that aspect of a “covered offense.”
The only other circuits to have confronted these arguments agree. 4

       Jackson has a covered offense. He meets all the requirements of section
404(a):    He was convicted of violating a statute whose penalties the Fair
Sentencing Act modified, and the violation occurred “before August 3, 2010.”
He also doesn’t transgress the “limitations” of section 404(c): He hasn’t made



       4 See Wirsing, 943 F.3d at 185−86; United States v. McDonald, 2019 WL 6721187,
at *2 (8th Cir. Dec. 11, 2019). The decision in United States v. Beamus, 2019 WL 6207955,
at *2–3 (6th Cir. Nov. 21, 2019) (per curiam), also appears to endorse our interpretation of
“covered offense.” Yet that court wasn’t directly confronted with the eligibility arguments
raised here. Instead, it held that a defendant’s status as a career offender didn’t make him
ineligible. Id. at *2.
                                             6
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                                      No. 19-20346
a “previous motion” under section 404 to reduce his sentence, nor was his sen-
tence “previously imposed or previously reduced in accordance with the amend-
ments made by sections 2 and 3 of the Fair Sentencing Act.” He is thus eligible
for resentencing.

                                             B.
       “That [Jackson] is eligible for resentencing does not mean he is entitled
to it,” however. Beamus, 2019 WL 6207955, at *3. The sentencing court has
broad discretion, since “nothing” in the FSA “shall be construed to require a
court to reduce any sentence.” 5 The district court exercised that discretion not
to resentence. It noted that Jackson’s life sentence still would have fallen
within the appropriate statutory range were the Fair Sentencing Act applied,
and it relied on his extensive criminal history and central role in the offense.

                                             1.
       Jackson’s main contention is that the court abused its discretion in sup-
posedly failing to conduct a “complete review” of his motion “on the merits.”
FSA, § 404(c). He suggests that the FSA required the court to hold a hearing,
order an updated PSR, and consider evidence of Jackson’s apparently admira-
ble post-sentencing conduct. The court’s failure to do so, he suggests, shows it
didn’t completely review his motion.

       Both the premises and conclusion are flimsy. Jackson misreads the FSA
in contending that the phrase “complete review of the motion on the merits”
imposes a kitchen sink of procedural requirements.                 To the contrary, the
relevant provision establishes that a defendant can file only one motion for


       5 FSA, § 404(c); see Hegwood, 934 F.3d at 418 (recognizing discretionary nature of the
decision whether to resentence under the FSA); Beamus, 2019 WL 6207995, at *3 (holding
that the FSA “leaves the choice whether to resentence to the district court’s sound
discretion”).
                                             7
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                                       No. 19-20346
resentencing. See id. “No court shall entertain a motion made under this
section to reduce a sentence . . . 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.” Id. (emphasis added).

       Even assuming that there is some mandatory baseline level of procedure,
the court did not err. Jackson suggests that the court should have held a
hearing. But nothing in the FSA requires it to do so, as the Eighth Circuit has
recognized. 6     Instead, the FSA states that “[a] court that imposed [the]
sentence . . . 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 . . . .” FSA, § 404(b). Its text imposes no further procedural hoops.
See id.

       Neither was the district court obliged to consider Jackson’s post-sentenc-
ing conduct. In Hegwood, 934 F.3d at 418, we held that the FSA doesn’t con-
template a plenary resentencing. Instead, the court “plac[es] itself in the time
frame of the original sentencing, altering the relevant legal landscape only by
the changes mandated by the 2010 Fair Sentencing Act.” Id. (emphasis added).
Thus, we held, the court couldn’t consider other post-sentencing changes in the
law. See id. It would therefore make little sense to mandate, as Jackson would
have it, that the court consider a defendant’s post-sentencing conduct, which
would be to peer outside “the time frame of the original sentencing.” 7

       The cases Jackson cites on procedural deficiency are beside the point. In



       6 See United States v. Williams, 2019 WL 6316657, at *1 (8th Cir. Nov. 26, 2019)
(“Because the [FSA] gives district courts discretion to reduce the sentence and does not men-
tion a hearing, it does not require district courts to hold a hearing.”); id. at *2 (“A district
court can conduct a complete review without a hearing, as the district court did here.”).
       7  Id. We do not hold that the court cannot consider post-sentencing conduct—only
that it isn’t required to.
                                               8
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                                    No. 19-20346
United States v. Larry, 632 F.3d 933, 935 (5th Cir. 2011), the district court
moved sua sponte to modify the sentence under 18 U.S.C. § 3582(c)(2) and
quickly denied the motion. We faulted the court for doing so without giving
the defendant any opportunity to present argument. Larry, 632 F.3d at 937.
Similarly, in Century Surety Co. v. Blevins, 799 F.3d 366, 372–73 (5th Cir.
2015), we criticized the court for dismissing claims via Federal Rule of Civil
Procedure 12(b)(6) sua sponte without providing notice or an opportunity to
respond. And in Diece-Lisa Industries, Inc. v. Disney Enterprises, Inc., 943 F.3d
239, 253−54 (5th Cir. 2019), we faulted the court for vacating, sua sponte
without providing a chance to respond, its order granting leave to amend.

      To describe those cases is to distinguish them. Jackson had his day in
court. He filed a detailed motion explaining why he should get a new sentence;
the government responded; the court denied the motion; and, on limited
remand, it explained why. That process is nothing like the extraordinary cir-
cumstances in Larry, Century Surety, and Diece-Lisa, in which the courts sua
sponte dismissed motions, claims, and orders without affording the parties any
notice or opportunity to respond. The procedures here were blameless.

                                           2.
      Jackson also contends that he should have been resentenced because he
was a mere “lookout” in the underlying offense and because his prior convic-
tions that triggered the mandatory life sentence involved “very small quanti-
ties of drugs.” There is no abuse of discretion. The court properly considered
Jackson’s extensive criminal history and role in the offense in declining to
reduce the sentence. 8




      8 We do not hold that the court must consider the factors in 18 U.S.C. § 3553(a) in
deciding whether to resentence under the FSA. We reserve the issue for another day.
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                           No. 19-20346
  The judgment is AFFIRMED.




                                10
