19-1035-cr
United States v. Holloway




                                  In the
           United States Court of Appeals
                      For the Second Circuit


                            August Term, 2019
                             No. 19-1035-cr

                       UNITED STATES OF AMERICA,
                                Appellee,

                                     v.

                            JASON HOLLOWAY,
                            Defendant-Appellant.



             Appeal from the United States District Court
                for the Western District of New York.
            No. 6:08-cr-6200-1 — Charles J. Siragusa, Judge.



                       ARGUED: FEBRUARY 26, 2020
                        DECIDED: APRIL 24, 2020

      Before: PARKER, LIVINGSTON, and NARDINI, Circuit Judges.



       Defendant Jason Holloway appeals from the denial of his
motion for a reduction of his sentence pursuant to the First Step Act
in the Western District of New York (Siragusa, J.). The district court
considered the motion under 18 U.S.C. § 3582(c)(2) and therefore
deemed itself bound by § 1B1.10 of the U.S. Sentencing Guidelines,
which permits a sentence reduction only to the extent that a relevant
sentencing amendment lowers the defendant’s Guidelines range. The
district court concluded that Holloway’s Guidelines range was
unaffected by the First Step Act, and therefore held that Holloway
was ineligible for a sentence reduction under the Act. The district
court did not address Holloway’s motion as to his term of supervised
release.   We hold that 18 U.S.C. § 3582(c)(1)(B), rather than
§ 3582(c)(2), is the correct basis for a motion to reduce a term of
imprisonment under the First Step Act, and thus U.S.S.G. § 1B1.10
does not affect a defendant’s eligibility for relief under the Act.
Because we hold that Holloway was eligible for relief under the plain
language of the Act, we VACATE the order denying the motion and
REMAND for further proceedings consistent with this opinion.


                         MARYBETH COVERT, Federal Public
                         Defender’s Office, Western District of New
                         York, Buffalo, NY, for Defendant-Appellant.

                         TIFFANY H. LEE, Assistant United States
                         Attorney, for James P. Kennedy, Jr., United
                         States Attorney for the Western District of
                         New York, Buffalo, NY, for Appellee.


WILLIAM J. NARDINI, Circuit Judge:

      Defendant-Appellant Jason Holloway appeals from the denial

of his February 1, 2019, motion to reduce his sentence pursuant to




                                     2
Section 404 of the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194

(2018), in the United States District Court for the Western District of

New York (Siragusa, J.). Holloway moved for a reduction of both his

168-month term of imprisonment and his ten-year term of supervised

release. In considering Holloway’s motion, the district court applied

the framework of 18 U.S.C. § 3582(c)(2), including § 1B1.10 of the U.S.

Sentencing Guidelines. Because Holloway had been sentenced as a

career offender, the district court concluded that his Guidelines range

after application of the First Step Act was equivalent to his original

Guidelines range. Accordingly, the district court held that Holloway

was ineligible for a reduction of his term of imprisonment. The

district court did not address Holloway’s motion for a reduction of

his term of supervised release. During the pendency of this appeal,

Holloway completed his prison term and was released from the

custody of the Federal Bureau of Prisons.




                                  3
      We hold that Holloway’s appeal was not mooted by his release

from prison. Holloway remains eligible for a reduction in his term of

supervised release.   On the merits, we hold that Holloway was

eligible for relief under the plain language of the First Step Act: The

district court had previously sentenced him for a covered offense

under the Act, and Holloway was not otherwise barred from relief

under the Act’s own limitations. We further hold that 18 U.S.C.

§ 3582(c)(1)(B), rather than § 3582(c)(2), provides the correct

framework for consideration of a motion for a reduction of a term of

imprisonment under the First Step Act; therefore, U.S.S.G. § 1B1.10

does not prevent a district court from considering a First Step Act

motion made by a defendant whose new Sentencing Guidelines range

is equivalent to his original range. Accordingly, we VACATE the

order denying Holloway’s motion and REMAND for proceedings

consistent with this opinion.




                                  4
I.    BACKGROUND

      A.     Holloway’s Initial Conviction and Sentencing

      On September 24, 2008, Holloway was charged in a three-count

indictment. As relevant to this appeal, he pled guilty on January 9,

2009, to Count One, which charged him with possessing “with the

intent to distribute fifty (50) grams of more of a mixture and substance

containing a detectable amount of cocaine base,” in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A). In his plea agreement, Holloway

conceded that he possessed more than 50 but less than 150 grams of

cocaine base, and that the government had seized 66.33 grams of

cocaine base from him in February 2008. Holloway also conceded two

prior convictions, which the government and Holloway agreed

rendered him a career offender under U.S.S.G. § 4B1.1. Additionally,

the government filed an information pursuant to 21 U.S.C. § 851

establishing a prior felony drug conviction. The parties accordingly

agreed to a Guidelines range of 262–327 months of imprisonment and

ten years of supervised release. Finally, the agreement contained



                                   5
terms of cooperation, by which the government would seek a

departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).

      The Probation Office then prepared a Presentence Investigation

Report (PSR) agreeing with the parties’ Guidelines calculations, and

the government ultimately moved for a four-level downward

departure per the terms of cooperation, leading to a recommended

sentencing range of 168–210 months of imprisonment.                 The

sentencing took place on June 22, 2010. The district court accepted the

PSR calculations, granted the government’s motion for a departure,

and sentenced Holloway to 168 months in prison followed by ten

years of supervised release.

      B.     The Fair Sentencing Act and First Step Act

      The Fair Sentencing Act, enacted in August 2010, altered the

threshold drug quantities that trigger the varying penalty ranges for

crack cocaine offenses located in 21 U.S.C. § 841(b)(1). See Pub. L. No.

111-220, § 2(a), 124 Stat. 2372, 2372. As relevant to Holloway, the Fair

Sentencing Act increased the threshold quantity for conviction under



                                   6
§ 841(b)(1)(A) from 50 to 280 grams of crack cocaine. Id. The Fair

Sentencing Act applied prospectively, as well as to offenses

committed before the Act’s enactment if the defendant had not yet

been sentenced. But it did not apply retroactively to defendants, like

Holloway, who had been sentenced before the Act became effective.

See United States v. Dorsey, 567 U.S. 260, 281 (2012). 1

       In December 2018, Congress enacted the First Step Act, Pub. L.

No. 115-391, 132 Stat. 5194. Section 404(b) of the Act provides:

       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.


1Holloway moved unsuccessfully for sentence reductions based on subsequent
amendments to the Guidelines offense levels for crack cocaine offenses that the
U.S. Sentencing Commission had made retroactive. See 75 Fed. Reg. 66188 (Oct.
27, 2010) (Emergency Amendment); U.S.S.G. App. C. Amend. 750 (2011)
(codifying Emergency Amendment); U.S.S.G. App. C. Amend. 782 (2014).
Holloway moved for these reductions pursuant to 18 U.S.C. § 3582(c)(2), which, as
discussed below, requires that any reduction be consistent with Commission
policy statements. Because Holloway was sentenced as a career offender, the
Guidelines amendments did “not have the effect of lowering [his] applicable
guideline range,” and he was therefore ineligible for relief under U.S.S.G.
§ 1B1.10(a)(2)(B).




                                       7
Id. § 404(b), 132 Stat. at 5222 (citation omitted).      Section 404(a),

meanwhile, defines the term “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.

Id. § 404(a), 132 Stat. at 5222 (citation omitted). The Act limits its

application only by preventing courts from hearing motions if (1) the

sentence in question “was previously imposed or previously

reduced” in accordance with the relevant provisions of the Fair

Sentencing Act, or (2) if a previous motion was made under the First

Step Act and denied “after a complete review of the motion on the

merits.” Id. § 404(c), 132 Stat. at 5222. Finally, Section 404 states that

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

reduce any sentence pursuant to this section.” Id.

      C.     Holloway’s Motion for First Step Act Relief

      After the First Step Act was enacted, Holloway moved for a

sentence reduction pursuant to Section 404 on February 1, 2019. The



                                    8
Probation Office produced a supplemental PSR, in which it concluded

that Holloway was not eligible for a reduction of his term of

imprisonment. The Probation Office interpreted Holloway’s motion

as one made under 18 U.S.C. § 3582(c)(2), meaning that any reduction

would need to be consistent with policy statements of the Sentencing

Commission. This included U.S.S.G. § 1B1.10(a)(2), which precludes

reductions if the relevant amendment to the Sentencing Guidelines

would “not have the effect of lowering the defendant’s applicable

guideline range.” Concluding that Holloway’s revised Guidelines

range was equivalent to his original range, the PSR opined that

Holloway was not eligible for a reduction of his term of imprisonment

under the First Step Act.            2   The PSR did, however, note that

Holloway’s mandatory minimum period of supervised release had


2 Holloway had been sentenced as a career offender, and, accordingly, his
Guidelines range depended on the statutory maximum term of imprisonment for
his offense. See U.S.S.G. § 4B1.1. In his case, however, that maximum was
unchanged by the Fair Sentencing Act. Compare 21 U.S.C. § 841(b)(1)(A) (10 years
to life), with id. § 841(b)(1)(B) (10 years to life for a person who has previously been
convicted of a serious drug felony).




                                           9
been reduced statutorily to eight years rather than ten. 3                  The

government subsequently agreed with the PSR’s conclusion that

Holloway was not eligible for any relief from his term of

imprisonment because his Guidelines range was unchanged. The

government also agreed that Holloway’s statutory minimum

supervised release term had been reduced and that he was thus

eligible for a reduction on that front.

       The district court, in a one-page order issued on April 8, 2019,

agreed with the Probation Office and the government that Holloway

was ineligible for a reduction of his prison term, finding that, under

U.S.S.G. § 1B1.10(a)(2)(B), “the amendment does not have the effect of

lowering [Holloway’s] applicable guideline range[ and a]s such, the

defendant is not eligible for a sentence reduction.” Joint App’x at 111.

The order did not address Holloway’s supervised release term.



3Because Holloway was sentenced subject to a § 851 information establishing a
prior felony drug conviction, he faced statutory minimum penalties of twenty
years of imprisonment rather than ten, and ten years of supervised release rather
than five.




                                       10
Holloway filed a timely appeal from the order on April 15, 2019. On

October 4, 2019, while this appeal was pending, Holloway was

released from prison. He remains on supervised release.

II.   DISCUSSION

      On appeal, Holloway argues that the district court erred in

considering his motion under 18 U.S.C. § 3582(c)(2) and thus applying

U.S.S.G. § 1B1.10 to conclude he was not eligible for a reduction in his

term of imprisonment. He also faults the district court for failing to

address his supervised release term.       We agree, and hold that

Holloway was eligible for — though not necessarily entitled to —

relief under the First Step Act.

      We note at the outset that Holloway’s appeal is not entirely

moot. It is true that Holloway has already been released from prison,

so it is too late to reduce his prison sentence. With respect to his

request for a lower prison term, his appeal is therefore now moot. But

the district court could still reduce his term of supervised release. On

remand, if the district court does so, it may factor in how much (if at



                                   11
all) it would have reduced Holloway’s prison term. See United States

v. Barresi, 361 F.3d 666, 675 (2d Cir. 2004); see also United States v.

Blackburn, 461 F.3d 259, 262 & n.2 (2d Cir. 2006) (holding that

challenge to sentence after release from prison was moot only where

record made clear that “the possibility of the district court's imposing

a reduced term of supervised release on remand is so remote and

speculative” that merits decision would amount to advisory opinion).

Because it remains possible for this Court to grant Holloway some

form of “effectual relief” should he prevail, the appeal is not moot in

its entirety. Church of Scientology v. United States, 506 U.S. 9, 12 (1992).

      A.     Standard of Review

      We typically review the denial of a motion for a discretionary

sentence reduction for abuse of discretion. See United States v. Borden,

564 F.3d 100, 104 (2d Cir. 2009). However, that standard applies only

if the district court exercised its discretion in the first place. Here, the

district court concluded that Holloway was not eligible for a First Step

Act reduction by operation of 18 U.S.C. § 3582(c)(2). The district court



                                    12
premised its decision entirely on statutory interpretation, and so our

review is de novo. See United States v. Brooks, 891 F.3d 432, 435 (2d Cir.

2018) (reviewing de novo a district court’s denial of sentence reduction

under § 3582(c)(2), where eligibility determination turned on

statutory interpretation); accord United States v. McDonald, 944 F.3d

769, 771 (8th Cir. 2019) (“We review de novo the applicability of the

First Step Act to a defendant’s case, including whether a defendant is

eligible for a sentence reduction.”).

      B.     Analysis

      Under the plain language of the First Step Act, Holloway was

eligible to be considered for a sentence reduction. As described

above, Section 404 bases eligibility — that is, when a court may

entertain a motion for relief under the Act — on whether a sentence

was imposed “for a covered offense.” Pub. L. No. 115-391, § 404(b),

132 Stat. at 5222. A covered offense, in turn, is defined 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



                                   13
committed before August 3, 2010.” Id. § 404(a), 132 Stat. at 5222

(citation omitted). To be eligible, then, Holloway was required to

demonstrate that he was sentenced for a particular “violation of a

Federal criminal statute,” and that the applicable statutory penalties

for that violation were modified by the specified provisions of the Fair

Sentencing Act. 4 Section 2 of the Fair Sentencing Act altered the drug-

quantity thresholds for the imposition of penalties in 21 U.S.C.

§§ 841(b)(1)(A)(iii) and 841(b)(1)(B)(iii). Holloway was sentenced for

having violated Count One of the indictment, which charged him

with possessing with intent to distribute 50 grams or more of cocaine

base. As relevant to the First Step Act, the district court therefore

“imposed a sentence” under § 841(b)(1)(A), which, because Holloway

had a prior felony drug conviction, entailed a statutory sentencing

range of twenty years to life in prison, and a minimum of ten years of



4 The relevance of a defendant’s underlying offense conduct to the eligibility
determination is not before us in this case, and so we leave that particular question
to a future appeal.




                                         14
supervised release. 5 Under the new crack cocaine quantity thresholds

enacted by the Fair Sentencing Act, his violation of Count One would

have subjected Holloway to the lower statutory range of sentences set

forth in § 841(b)(1)(B) — namely, ten years to life in prison, and eight

or more years of supervised release. As a result, because Section 2 of

the Fair Sentencing Act modified the statutory penalties for the

violation of 21 U.S.C. § 841(a) charged in Count One, for which he was

sentenced — and because Holloway is not subject to either of the

textual limitations imposed by Section 404(c) of the First Step Act —




5We emphasize that the inquiry under the plain language of the First Step Act is
not whether the defendant was “charged with” a covered offense, but whether the
court had previously “imposed a sentence” for a covered offense. Pub. L. No. 115-
391, § 404(b), 132 Stat. at 5222. This can be a meaningful distinction in particular
cases, for example where a defendant pleads guilty and is sentenced to a lesser-
included offense of the one outlined in the indictment. There may also be a
disjuncture between the language of the indictment and the violation for which a
defendant was sentenced in cases predating United States v. Thomas, 274 F.3d 655
(2d Cir. 2001) (en banc), where we first held that the drug quantity thresholds
under 21 U.S.C. § 841(b)(1)(A) were elements of the offense which needed to be
alleged in a charging document. Accordingly, it is important to remain focused
on the violation for which the district court “imposed a sentence” — a violation
that might or might not correspond to the language of the indictment, depending
on the case.




                                        15
Holloway is eligible for relief under the plain language of the First

Step Act.

       The district court denied the motion, however, on the basis that

Holloway’s new Guidelines range would be no different from his

original    range.       Without      the     benefit    of   any    precedential

interpretations of the First Step Act, the district court (and the

Probation Office) understandably treated Holloway’s motion for

relief as one brought under 18 U.S.C. § 3582(c)(2) — a familiar

procedural vehicle that has absorbed a considerable portion of district

court dockets in recent years. 6 As noted above, the district court thus

considered itself bound by U.S.S.G. § 1B1.10(a)(2), see, e.g., United

States v. Williams, 551 F.3d 182, 186 (2d Cir. 2009) (noting that

language of § 3582(c)(2) makes clear that courts “are bound” by


6 The district court issued its ruling on a standard court form AO-247, which is
captioned “ORDER REGARDING MOTION FOR SENTENCE REDUCTION
PURSUANT TO FIRST STEP ACT AND 18 U.S.C. § 3582(c)(l)(B).” Joint App’x at
111. Notwithstanding the form’s opening recitation that the district court had
considered § 3582(c)(l)(B), it is apparent from the ruling inserted by the court that
it had, instead, considered itself bound by U.S.S.G. § 1B1.10(a)(2)(B), and therefore
that it was operating under the rubric of § 3582(c)(2).




                                         16
U.S.S.G. § 1B1.10 when considering motions under the statute), and it

denied Holloway’s motion because his Guidelines range was

unchanged due to his status as a career offender.

       A First Step Act motion, however, is not properly evaluated

under 18 U.S.C. § 3582(c)(2).         That provision applies only if the

defendant seeks a reduction because he was sentenced “to a term of

imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission pursuant to 28 U.S.C.

§ 994(o),” i.e., a change to the Sentencing Guidelines. 7 18 U.S.C.

§ 3582(c)(2). But a First Step Act motion is based on the Act’s own

explicit statutory authorization, rather than on any action of the

Sentencing Commission. For this reason, such a motion falls within

the scope of § 3582(c)(1)(B), which provides that a “court may modify




7This authority, in relevant part, provides that “[t]he Commission periodically
shall review and revise, in consideration of comments and data coming to its
attention, the guidelines promulgated pursuant to the provisions of this section.”
28 U.S.C. § 994(o).




                                       17
an imposed term of imprisonment to the extent otherwise expressly

permitted by statute.” 8 This section contains no requirement that the

reduction comport with U.S.S.G. § 1B1.10 or any other policy

statement, and thus the defendant’s eligibility turns only on the

statutory criteria discussed above.            Accordingly, Holloway was

eligible for a reduction in his term of imprisonment, and the district

court erred in denying his motion solely on the basis that it believed

itself to be bound by U.S.S.G. § 1B1.10.

       Holloway likewise was eligible for a reduction in his term of

supervised release, an issue not addressed by the district court in its

denial of Holloway’s motion. The First Step Act provides authority

to district courts to reduce imposed sentences, a term that encompasses

equally terms of imprisonment and terms of supervised release, both




8In so holding, we agree with the other Courts of Appeals to have thus far
addressed this question. See United States v. Wirsing, 943 F.3d 175, 183 (4th Cir.
2019); United States v. Beamus, 943 F.3d 789, 792 (7th Cir. 2019); United States v.
Gibbs, 787 F. App’x 71, 72 n.1 (3d Cir. 2019) (mem.); see also McDonald, 944 F.3d at
772 (noting that eligibility for relief turns only on offense of conviction).




                                        18
of which constitute statutory penalties which were modified by

sections 2 and 3 of the Fair Sentencing Act. Cf. Mont v. United States,

139 S. Ct. 1826, 1834 (2019) (“Supervised release is a form of

punishment that Congress prescribes along with a term of

imprisonment as part of the same sentence.” (citing 18 U.S.C. § 3583)).

Holloway’s eligibility for a reduction in his term of supervised release

thus turns on the same statutory criteria as does his eligibility for a

reduction in his term of imprisonment. 9

       Finally, we emphasize what this opinion does not decide: First,

while Holloway is plainly eligible for relief, he is not necessarily

entitled to relief. The First Step Act is clear that it does not “require a

court to reduce any sentence.” Pub. L. No. 115-391, § 404(c), 132 Stat.

at 5222. Whether Holloway’s remaining term of supervised release


9Both parties agree that, because the government moved under 18 U.S.C. § 3553(e)
at Holloway’s original sentencing, the district court was not bound at that
sentencing by the ten-year statutory minimum term of supervised release then
applicable under 18 U.S.C. § 841(b)(1)(A). We hold — and the parties again
agree — that the district court would likewise remain unconstrained on remand
by the newly lowered statutory minimum of eight years (if indeed it chooses to
exercise its discretion to reduce Holloway’s term of supervised release).




                                      19
should be reduced is a matter left to the district court’s sound

discretion. Second, because these issues are not properly before us,

we do not decide the procedural requirements for consideration of a

sentence reduction under the Act once eligibility has been

determined, nor do we decide — except as noted above — what

factors the district court may (or must) consider in weighing whether

and to what extent a sentence reduction is warranted. We leave these

and other questions concerning the First Step Act for another day.

III.   CONCLUSION

       To summarize, we hold as follows:

       (1) A defendant’s release from prison during the pendency of

         an appeal of a denial of First Step Act relief does not moot

         the appeal, to the extent that the district court could still

         reduce an undischarged term of supervised release.

         Holloway is still serving a term of supervised release, and

         his request for a reduction of that term remains a live

         controversy.



                                 20
(2) Where a defendant is not otherwise ineligible for First Step

   Act relief according to the limitations set forth in Section

   404(c) of that Act, the defendant’s eligibility depends only

   on whether the statutory penalties for the violation for

   which the defendant was sentenced were modified by

   Sections 2 and 3 of the Fair Sentencing Act. In Holloway’s

   case, the statutory penalties for Count One — of which he

   was convicted and for which he was sentenced — would

   have been lower in the wake of the Fair Sentencing Act.

   Accordingly, he is eligible for First Step Act relief.

(3) A   defendant’s    eligibility   for   a   reduced      term   of

   imprisonment under Section 404 of the First Step Act is not

   governed by 18 U.S.C. § 3582(c)(2), and thus a district court

   considering such a motion is not constrained by U.S.S.G.

   § 1B1.10(a)(2)(b). Instead, such a motion is governed by 18

   U.S.C. § 3582(c)(1)(B). Holloway’s eligibility for First Step




                             21
         Act relief was therefore not dependent on whether his

         Guidelines range would be lower in light of the Fair

         Sentencing Act.

      For the foregoing reasons, we VACATE the order denying

Holloway’s First Step Act motion and REMAND for consideration of

a reduction in Holloway’s term of supervised release consistent with

this opinion.




                                22
