                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 20a0150p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                   ┐
                                    Plaintiff-Appellee,      │
                                                             │
                                                              >        No. 19-5281
        v.                                                   │
                                                             │
                                                             │
 MARTY LANDON SMITH,                                         │
                                 Defendant-Appellant.        │
                                                             ┘

                         Appeal from the United States District Court
                        for the Eastern District of Kentucky at London.
                    No. 6:06-cr-00021-1—Danny C. Reeves, District Judge.

                               Decided and Filed: May 15, 2020

                  Before: ROGERS, WHITE, and STRANCH, Circuit Judges.
                                  _________________

                                            COUNSEL

ON BRIEF: Charles P. Wisdom Jr., John Patrick Grant, UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee. Marty Landon Smith, Rochester, Minnesota, pro
se.
                                      _________________

                                              ORDER
                                      _________________

       Marty Landon Smith, a pro se federal prisoner, appeals the district court’s order denying
his motion for a sentence reduction filed under the First Step Act of 2018. This case has been
referred to a panel of the court that, upon examination, unanimously agrees that oral argument is
not needed. See Fed. R. App. P. 34(a).
 No. 19-5281                         United States v. Smith                               Page 2


       In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack
cocaine, see 21 U.S.C. §§ 841(a)(1), 845, 851. Because he had a prior felony drug conviction, he
faced a mandatory-minimum sentence of 20 years of imprisonment, even though his advisory
sentencing range under the United States Sentencing Guidelines would otherwise have been 168
to 210 months. The district court sentenced him to the mandatory minimum: 240 months of
imprisonment plus ten years of supervised release.

       In 2018, Smith filed a letter with the district court asking for counsel to be appointed to
review whether the First Step Act applied to his sentence. The First Step Act empowers district
courts to reduce a prisoner’s sentence by applying the Fair Sentencing Act of 2010 retroactively,
see First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222, which the Fair
Sentencing Act did not itself do, see Dorsey v. United States, 567 U.S. 260, 281 (2012). The
Fair Sentencing Act amended 21 U.S.C. § 841 by increasing the amount of crack cocaine
required to trigger mandatory-minimum sentences. See id. at 268-70. Before its passage, a drug-
distribution conviction involving more than 50 grams of crack cocaine carried a 10-year
minimum sentence, which was increased to a 20-year minimum if the defendant had a prior
felony drug conviction.    21 U.S.C. § 841(b)(1)(A)(iii) (2010).      The Fair Sentencing Act
increased the threshold to trigger those mandatory minimums to 280 grams, 21 U.S.C.
§ 841(b)(1)(A)(iii); a conviction like Smith’s, involving 50 grams, thereafter carried
corresponding 5- and 10-year minimums, 21 U.S.C. § 841(b)(1)(B)(iii).

       The district court construed Smith’s letter as a motion seeking a sentence reduction under
18 U.S.C. § 3582(c). The court determined that Smith was eligible for a reduction under
§ 3582(c) and the First Step Act, but declined to grant one. United States v. Smith, No. CR 6:06-
021-DCR-1, 2019 WL 1028000 (E.D. Ky. Mar. 4, 2019). Smith now appeals.

       We have jurisdiction over Smith’s appeal under 28 U.S.C. § 1291. See United States
v. Marshall, 954 F.3d 823, 829 (6th Cir. 2020); United States v. Foreman, No. 19-1827, --- F.3d
---, 2020 WL 2204261, at *8 (6th Cir. May 7, 2020).

       We review the denial of a motion for a sentence reduction under the First Step Act and
§ 3582(c) for an abuse of discretion. See United States v. Woods, 949 F.3d 934, 937–38 (6th Cir.
 No. 19-5281                          United States v. Smith                               Page 3


2020); United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009). “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.” Moore, 582 F.3d at 644 (quoting United States v.
Pugh, 405 F.3d 390, 397 (6th Cir. 2005)). A district court’s decision should be vacated only if
we are “firmly convinced that a mistake has been made.” Id. (quoting McCombs v. Meijer, Inc.,
395 F.3d 346, 358 (6th Cir. 2005)).

       The district court held that Smith was eligible for a sentence reduction under the First
Step Act. The district court acknowledged that under the current sentencing regime, Smith’s
guideline range after applying the retroactive guidelines amendments would be 77 to 96 months
of imprisonment and he would be subject to a 10-year mandatory-minimum sentence. Smith,
2019 WL 1028000, at *3. However, the district court denied Smith’s motion for a reduction,
concluding that his original 20-year sentence remained appropriate.

       The First Step Act, § 404(b), 132 Stat. at 5222, and § 3582(c)(1)(B) give courts discretion
to decide whether a prisoner who is eligible for a sentence reduction merits one, and the
government agrees that we should review the decision regarding whether a reduction was
warranted for an abuse of discretion. The district court must consider the factors in § 3553(a),
which requires that a sentence be “not greater than necessary.” The relevant guideline range in
this case, both before and after the First Step Act, was the statutorily required minimum sentence
that exceeded what was otherwise the relevant guideline range. See U.S.S.G § 5G1.1(b). While
the original sentence was at the guideline range by virtue of the then-applicable statutory
minimum, Smith’s sentence after the First Step Act is twice the guideline range—a range set by
Congress rather than the Sentencing Commission.

       As we explained in the Government’s appeal of a far-below-guideline sentence in United
States v. Bistline, 665 F.3d 758 (6th Cir. 2012), the sentencing guidelines ‘“should be the starting
point and the initial benchmark’ for choosing a defendant’s sentence” even though they are now
only advisory. Id. at 761 (quoting Gall v. United States, 552 U.S. 38, 49 (2007)). If the district
court decides to impose or refuse to reduce a sentence outside the applicable guideline range,
“the court must ‘ensure that the justification is sufficiently compelling to support the degree of
the variance. We find it uncontroversial that a major departure should be supported by a more
 No. 19-5281                          United States v. Smith                               Page 4


significant justification than a minor one.”’ Id. (quoting Gall, 552 U.S. at 50). The variance in
this case is certainly a major one. It is twice the maximum of the guideline range set by the
statute, and two-and-a-half times what the guideline would otherwise be without the statutory
minimum.

       Moreover, the fact that Congress was the actor that reduced Smith’s guideline range
through the passage of the First Step Act, rather than the Sentencing Commission, if anything
increases rather than decreases the need to justify disagreement with the guideline. Again, as we
said in Bistline, “a district court cannot reasonably reject § 2G2.2—or any other guidelines
provision—merely on the ground that Congress exercised, rather than delegated, its power to set
the policies reflected therein. That is not to say that a district court must agree with a guideline
in which Congress has played a direct role. It is only to say that the fact of Congress’s role in
amending a guideline is not itself a valid reason to disagree with the guideline.” Id. at 762. The
fact that Congress was the actor that lowered the mandatory minimum here and thereby lowered
the relevant guideline range puts that amended guideline on “stronger ground.” See id. at 764.
When “a guideline comes bristling with Congress’s own empirical and value judgments—or
even just value judgments—the district court that seeks to disagree with the guideline on policy
grounds faces a considerably more formidable task than the district court did in [Kimbrough v.
United States, 552 U.S. 85 (2007)].” Id.

       The district court’s explanation for denying Smith’s motion for a reduction does not
adequately explain why Smith should not receive at least some sentence reduction.             After
reciting Smith’s criminal conduct that resulted in his 2006 conviction, the district court recalled
that it had examined the § 3553(a)(2) sentencing factors and had explained why a sentence of
20 years’ imprisonment was appropriate during Smith’s original sentencing in March 2007.
Beyond relying on the court’s analysis at the original sentencing hearing, the court briefly
discussed the nature and circumstances of Smith’s offense and the need to protect the public—
two of the § 3553(a) factors. The court pointed to the scale and harm of Smith’s criminal
conduct and determined that Smith has a high risk for recidivism based on statistical information
of people who, like Smith, have a significant criminal history. However, these considerations are
accounted for within the guidelines calculation and therefore do not provide sufficient
 No. 19-5281                              United States v. Smith                           Page 5


justification for maintaining a sentence that is twice the maximum of the guideline range set by
Congress. See 28 U.S.C. § 991(b); Rita v. United States, 551 U.S. 338, 348–49 (2007). This is
especially true when the district court previously found the at-guideline range sentence to be
appropriate.

       Ultimately, the district court failed to provide a sufficiently compelling justification for
maintaining a sentence that is now twice the guideline range set by Congress. We are confident
on remand that the district court can determine whether, in its discretion, a sentence less than
20 years is appropriate after considering the § 3553(a) factors with reference to the purposes of
the First Step Act and Fair Sentencing Act.

       Accordingly, we VACATE the district court’s order and REMAND the case to the
district court for further proceedings.

                                                 ENTERED BY ORDER OF THE COURT




                                                 Deborah S. Hunt, Clerk
