     Case: 19-30822      Document: 00515524182         Page: 1    Date Filed: 08/12/2020




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

                                                                                FILED
                                      No. 19-30822
                                                                          August 12, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

GREGORY DEPRICE CARR,

              Defendant - Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CR-106-1


Before JOLLY, JONES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Gregory Deprice Carr appeals from a district court order denying a
reduction of his sentence except for the grant of a two-year reduction of his
term of supervised release. His appeal implicates the First Step Act of 2018,
Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222, which allows a district court
to reduce certain earlier-imposed sentences while affording broad discretion to
the court to decide whether a reduced sentence is appropriate.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-30822
      Here, the district court explained, as its reason for declining to reduce
Carr’s term of imprisonment, that Carr’s original sentence was both then and
now within the recommended guidelines range. Carr argues that in so doing
the district court erroneously interpreted the Act to preclude the reduction of
a sentence that remains within-guidelines at the time of resentencing.
However, Carr’s argument that the district court’s reason for denying relief
was an error of law in interpreting the Act is not convincing. Because the
district court’s reasoning may, plausibly, be viewed as an exercise of judgment
within the broad discretion vested in that court, we affirm.
                                        I.
      In 2007, Carr pleaded guilty to one drug and two firearm offenses:
possession with the intent to distribute 50 grams or more of cocaine base
(Count One), possession of a firearm in furtherance of a drug trafficking crime
(Count Two), and possession of a firearm by a convicted felon (Count Three).
Carr was designated a “career offender” under U.S.S.G. § 4B1.1 and sentenced
to concurrent 327-month prison terms for Counts One and Three. For Count
Two, Carr was sentenced to an additional 60 months in prison, to be served
consecutively to his 327-month sentences. He was further sentenced to ten
years of supervised release for Count One, five years of supervised release for
Count Two, and three years of supervised release for Count Three, all to be
served concurrently. Carr appealed his sentence, but we dismissed his appeal
as frivolous after his attorney moved for leave to withdraw in accordance with
Anders v. California, 386 U.S. 738 (1967). See United States v. Carr, 302 F.
App’x 289 (5th Cir. 2008).
      More than a decade later, in 2019, Carr filed a counseled motion in the
district court for a sentence reduction under Section 404 of the First Step Act.
A brief discussion of the First Step Act is thus in order.


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                                  No. 19-30822
      Section 404 of the First Step Act provides “for retroactive application of
sections 2 and 3” of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, §§ 2–
3, 124 Stat. 2372. See United States v. Stewart, 964 F.3d 433, 434 (5th Cir.
2020). Under Section 404, a district court “may,” in its discretion, “impose a
reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in
effect at the time [a] covered offense was committed.” 132 Stat. at 5222.
Sections 2 and 3 of the Fair Sentencing Act, in turn, “increase[d] the amount
of cocaine base required to impose certain mandatory minimum sentences” and
“eliminated a mandatory minimum sentence for simple possession of cocaine
base.” United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019). Thus, a
“covered” offense is any “violation of a [f]ederal 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”—generally speaking,
a cocaine base or “crack cocaine” offense. United States v. Jackson, 945 F.3d
315, 319 (5th Cir. 2019) (quotation omitted).        Possession with intent to
distribute 50 grams or more of cocaine base is a covered offense if committed
before August 3, 2010. Id. at 318, 320–21. No one disputes that Carr’s Count
One offense matches that description.
      Accordingly, Carr’s motion before the district court homed in on the
Count One conviction for possession with intent to distribute 50 grams or more
of cocaine base, his only “covered” offense under the First Step Act. He argued
that the 327-month prison sentence that he received for that offense should be
reduced, despite conceding that the prison term remains, as it has always been,
within the recommended guidelines range.
      Notwithstanding, Carr urged the district court to reduce his sentence
anyway. He contended that a downward departure from the guidelines was
warranted in the light of his good behavior in prison.          He also sought,
apparently for similar reasons, a reduction of his ten-year term of supervised
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                                 No. 19-30822
release. Unlike Carr’s term of imprisonment, the original ten-year supervised
release term for Count One exceeds the current recommendation of the
guidelines; the recommended term of supervised release is now lower—eight
years rather than ten.
                                       II.
      Acknowledging these considerations, the district court chose to reduce
Carr’s supervised release term but not his prison term. It reasoned as follows:
      The First Step Act has the effect of reducing the defendant’s
      statutory minimum terms of imprisonment and supervised
      release, from 20 to 10 years and 10 to [8] years, respectively. The
      defendant’s guideline range of imprisonment is unaffected by these
      changes; however, his guideline range of supervised release is
      reduced from 10 to [8] years. As such, his term of supervised
      release is reduced to [8] years so that his sentence remains a
      guideline sentence. A downward variant sentence of imprisonment
      is not imposed since the original sentencing judge imposed a
      guideline sentence.
                                      III.
      Carr appeals. He argues that Section 404(c) of the First Step Act entitled
him to “a complete review of [his] motion on the merits” and that, by failing to
“appreciate the scope of its discretion,” the district court deprived him of such
review.   Stated differently, Carr’s argument is that the district court
erroneously interpreted the First Step Act to preclude a reduction of his prison
term where, as here, the prison term originally imposed falls within the
guidelines range applicable at the time of resentencing.
      Our review is for abuse of discretion. Jackson, 945 F.3d at 319. It is the
defendant’s burden to “show that the trial judge’s action amounted to an . . .
abuse of discretion.” United States v. Garcia, 693 F.2d 412, 415 (5th Cir. 1982).
Of course, a “district court abuses its discretion if it bases its decision on an
error of law[.]” United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).


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                                       No. 19-30822
       Carr has failed to show that the district court based its decision on an
erroneous interpretation of the First Step Act. Carr relies primarily on the
district court’s statement that it would deny Carr’s request for a downward
variance “since the original sentencing judge imposed a guideline sentence.”
According to Carr, this statement “shows that the court felt bound [as a matter
of law] not to disturb the sentencing decision of the original sentencing judge.”
Carr acknowledges, of course, that the district court has “broad discretion in
deciding whether to resentence” a defendant under the First Step Act. See
Jackson, 945 F.3d at 319. His appeal depends on his ability to show that the
district court has made an error of law—specifically, that the district court
misinterpreted the First Step Act to preclude the reduction of a still-within-
guidelines prison term.
       We will assume, without deciding, that it would constitute an error of
law and hence an abuse of discretion if the district court had interpreted the
Act in this manner. 1 Such an assumed rule cannot be applied here, however,
because Carr has not established that the district court’s ruling misinterpreted
the Act. On the contrary, a more plausible interpretation of the district court’s
reasoning is that the court exercised its discretion and chose not to reduce
Carr’s original term of imprisonment. For example, the court explained that a
downward variance “is” not imposed—not that a downward variance “must”
not be imposed, “cannot” be imposed, or “may” not be imposed. In the absence
of any mandatory language, we cannot assume that the district court
misinterpreted the Act and perceived itself to be bound by a statutory rule or
requirement. Indeed, Carr himself argued in the district court that the First
Step Act “places no restriction on what [a court] may consider in imposing a


       1 Both parties presume that the First Step Act does in fact permit a downward
departure from the guidelines in this context, but neither party has cited, nor have we found,
binding authority confirming that this is so.
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                                       No. 19-30822
reduced sentence.” To be sure, we find more persuasive the understanding
that the district court believed Carr’s original term of imprisonment to remain
appropriate, and so decided, as an exercise of its broad discretion, not to impose
a lesser term.
       In any event, even if we found the district court’s reasoning ambiguous,
Carr has the burden to convince us that an abuse of discretion actually
occurred. Garcia, 693 F.2d at 415. Identifying an ambiguous statement that
could be read to evince an abuse of discretion is not enough. 2
                                              IV.

       Accordingly, for the reasons we have set out above, the judgment of the
district court is

                                                                                AFFIRMED.




       2  Carr argues, albeit briefly, that the district court’s misinterpretation of the First
Step Act is supported by the court’s “failure . . . to address any of the arguments and evidence
[that he] presented . . . in support of a reduced sentence.” Thus, in essence, Carr supports
his argument that an abuse of discretion occurred with the district court’s failure to include,
in its statement of reasons, some discussion of Carr’s claimed exemplary post-sentencing
conduct in prison. Our decision in United States v. Jackson, however, expressly held that
district courts applying the First Step Act are not “obliged to consider . . . post-sentencing
conduct.” 945 F.3d at 321.
        Carr also argues that the district court did not give his argument full consideration
(supposedly because the district court felt it was legally bound to leave the original sentence
in place) and that this is indicated by the court’s use of an improper form that allowed no
space for anything but a perfunctory result. We have considered this argument and, in view
of what we have held above, we find that it does not affect our conclusion that the district
court exercised its discretion without committing a legal error.

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