Case: 20-50307 Document: 00516193902 Page: 1 Date Filed: 02/07/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 7, 2022
No. 20-50307 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Marvin Wayne Lyons, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:08-CR-153-1
Before Dennis, Southwick, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Marvin Wayne Lyons, Jr. asserts the district court abused its
discretion in denying his motion for a sentence reduction under § 404 of the
First Step Act of 2018 because the court referred to a “hypothetical
sentencing enhancement that was not applied at his original sentencing” in
its denial. Finding no abuse of discretion, we AFFIRM.
I.
In 2009, Lyons pled guilty to possession with intent to distribute at
least 50 grams of cocaine base (crack cocaine), in violation of 21 U.S.C.
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§ 841(a)(1), (b)(1)(A)(iii), and possession of a firearm during that offense, in
violation of 18 U.S.C. § 924(c)(1)(A)(i). As part of the plea agreement, the
Government agreed not to proceed on a previously filed information under
21 U.S.C. § 851(a) seeking an enhanced sentence under § 841(b)(1)(A)(i)
based on Lyons’s previous conviction of a drug felony. 1 The Government
also agreed not to file any additional charges against Lyons. See Fed. R.
Crim. P. 11(c)(1)(A). In return for the Government’s concessions, Lyons
agreed to cooperate with the Government and to waive his right to appeal or
collaterally attack his convictions or sentences.
At rearraignment, the district court accepted Lyons’s guilty plea but
deferred acceptance of the plea agreement to sentencing. See Fed. R.
Crim. P. 11(c)(1)(A), (c)(3)(A) (prescribing procedures for entry and
acceptance of plea agreements where the Government agrees to dismiss
extant charges or not bring others); see also U.S.S.G. § 6B1.2(a), p.s. At
sentencing, the district court accepted the plea agreement and sentenced
Lyons to 140 months of imprisonment on the drug trafficking conviction, the
middle of the advisory guidelines range, and a consecutive term of 60 months
for the firearms conviction. It also imposed concurrent five-year terms of
supervised release. Though it did not pursue the § 851 enhancement, the
Government did not move to dismiss the § 851 enhancement information
that it had previously filed, and the district court did not enter an oral or
written order expressly dismissing it. Lyons did not object to the
Government’s failure to request dismissal of the § 851 information, and he
did not file a direct appeal.
1
Had the Government sought an enhanced sentence under the § 851 information,
Lyons’s mandatory minimum sentence for the drug trafficking offense would have
increased from 10 years to 20 years of imprisonment.
2
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In 2016, Lyons filed a motion under 18 U.S.C. § 3582(c) to have his
sentence reduced pursuant to Amendment 782 to the Sentencing Guidelines.
The district court granted the motion and reduced Lyons’s sentence on the
drug trafficking conviction to 120 months. In 2017, Lyons again moved for a
sentence reduction under § 3582(c), citing Amendment 750 to the
Sentencing Guidelines, which reduced base offense levels for certain drug
offenses. The district court denied the motion on the ground that Lyons’s
sentence had already been reduced to the statutory mandatory minimum
imprisonment term that continued to apply to his drug trafficking offense,
such that he was ineligible for a further reduction.
After Congress passed the First Step Act (FSA), which made the Fair
Sentencing Act’s reduced mandatory minimum sentences for offenses
involving cocaine base retroactively applicable to certain defendants, Lyons
filed a pro se motion seeking a further sentence reduction under FSA § 404.
Thereafter, the Federal Public Defender enrolled as Lyons’s counsel and
filed a new motion for a sentence reduction on his behalf.
In his counseled motion, Lyons argued that he was eligible for a
reduction because the statutory imprisonment range for his drug trafficking
offense had been lowered from a range of 10 years to life down to five years
to 40 years and that his guidelines range had been reduced to 84 to 105
months of imprisonment followed by four years of supervised release. This
revised range was lower than the mandatory minimum sentence that had
applied to him prior to enactment of the FSA. Lyons urged the district court
to reduce his sentence to 84 months of imprisonment and four years of
supervised release on the grounds that the reduction would further the goals
of Congress in enacting the FSA and would avoid unwarranted sentencing
disparities. He also asserted that such a reduction was otherwise warranted
under 18 U.S.C. § 3553(a), given the amount of time that he had already
served, his significant postconviction rehabilitation, the skills that he had
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developed that would enable him to secure gainful employment upon his
release, and his substantial ties to his family, who continued to support him.
The Government filed a response in opposition but conceded that
Lyons was eligible for a reduction and that his amended guidelines range was
84 to 105 months of imprisonment. The Government contended that the
district court nevertheless should deny Lyons a reduction because
(1) Lyons’s current sentence remained within the newly-applicable statutory
range of five to 40 years of imprisonment; (2) the Government could have
pursued an enhanced sentence based on the § 851 information that it had filed
prior to entering into the plea agreement with Lyons; and (3) Lyons had an
extensive criminal history. The Government also noted that “[n]othing
Lyons did after his conviction should be considered,” citing United States v.
Hegwood, 934 F.3d 414, 418 (5th Cir. 2019). Alternatively, the Government
contended that the district court should not reduce Lyons’s sentence below
105 months, even if it decided that a sentence reduction was warranted. The
Government did not assert that a sentence reduction would be barred by the
waiver of appeal and collateral relief provision in his plea agreement.
In reply, Lyons objected to the Government’s argument that he
should be denied a sentence reduction based on the § 851 sentencing
enhancement information because the Government had agreed to dismiss the
information as part of his plea agreement. He further asserted that the
district court should give due consideration to his lowered guidelines range
and that Hegwood did not limit the district court’s ability to do so or to
consider postconviction rehabilitation. Finally, Lyons asserted that the
Government mischaracterized his criminal history and reurged his
arguments that a sentence reduction was warranted under the § 3553(a)
sentencing factors.
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The district court issued a memorandum decision denying relief.
Although it determined that Lyons was eligible for a reduction, the court
exercised its discretion to deny his motion. Preliminarily, it found that Lyons
and the Government entered into an agreement in which the Government
agreed to dismiss the § 851 sentencing enhancement information and Lyons,
in turn, “agreed not to contest his sentence ‘in exchange for the concessions
made by the Government.’” After observing that Lyons would still be
subject to a sentence of 120 months of imprisonment had the § 851
enhancement been pursued (notwithstanding the changes effected by the
FSA), the court reasoned that exercising its discretion to deny Lyons a
sentencing reduction was appropriate: “The [c]ourt believes that [Lyons]
and the Government negotiated a plea agreement in which both gave valuable
consideration” that was unaffected by the change in law that allowed Lyons
to seek a reduced sentence. The court did not address the Government’s
alternative arguments for denying a sentence reduction. Lyons filed a timely
notice of appeal. 2
2
On appeal, the federal public defender appointed to represent Lyons filed a
motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that
there were no nonfrivolous issues for this court’s review. Lyons filed a pro se response.
This court determined that counsel’s brief was inadequate because it failed to address
whether the district court arguably abused its discretion under Hegwood, 934 F.3d at 418–
19 and United States v. Cooley,
590 F.3d 293, 296–97 (5th Cir. 2009), by relying on the
appeal and collateral relief waiver and finding that Lyons was still subject to an § 851
enhancement despite the original sentencing court’s acceptance of the plea agreement
between Lyons and the Government, which required dismissal of the § 851 enhancement.
The court ordered that the motion to withdraw be carried with the case and directed the
public defender to file a supplemental Anders brief addressing those issues or a brief on the
merits addressing any nonfrivolous issues that counsel deemed appropriate. Counsel
submitted a brief on the merits, rendering the motion to withdraw moot.
We further note that Lyons was released from the custody of the Bureau of Prisons
on July 2, 2021. But this appeal is not moot because, as stated supra, Lyons also requested
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II.
We review motions to resentence under the FSA for abuse of
discretion. United States v. Jackson, 945 F.3d 315, 319 (5th Cir. 2019), cert.
denied,
140 S. Ct. 2699 (2020). “A court abuses its discretion when the court
makes an error of law or ‘bases its decision on a clearly erroneous assessment
of the evidence.’” United States v. Larry,
632 F.3d 933, 936 (5th Cir. 2011)
(quoting United States v. Lipscomb,
299 F.3d 303, 338–39 (5th Cir. 2002)).
“[T]o the extent the court’s determination turns on the meaning of a federal
statute such as the FSA, our review is de novo.” United States v. Stewart,
964
F.3d 433, 435 (5th Cir. 2020).
III.
Section 404 of the FSA “concerns the application of the Fair
Sentencing Act of 2010.” Hegwood, 934 F.3d at 416 (internal quotation marks
and citation omitted). Section 404 gives courts discretion to reduce a
sentence for a “covered offense.” “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 committed before August 3, 2010.”
132 Stat. 5194, 5222 (§ 404(a)-(b));
see also Hegwood,
934 F.3d at 418. Here, there is no dispute that Lyons’s 2009
conviction for possession with intent to distribute 50 grams or more of
cocaine base (268.27 grams, to be exact) constitutes a covered offense. 3 See
a one-year reduction in the concurrent five-year terms of supervised release imposed for
his crack cocaine and firearms convictions, which the district court implicitly denied.
3
Section 2 of the Fair Sentencing Act amended Lyons’s conviction statute,
§ 841(b)(1)(A)(iii), by raising the 50-gram threshold to 280 grams. Pub. L. No. 111-220,
124 Stat. 2372 (2010). It likewise raised § 841(b)(1)(B)(iii)’s five-gram threshold to 28
grams. Id. Given these changes, retroactive application of the Fair Sentencing Act would
reduce Lyons’s statutory mandatory minimum sentence from 10 years to five years and
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Jackson, 945 F.3d at 319–20. Denying Lyons’s motion, the district court
simply agreed with the Government that a sentence reduction was not
warranted.
Lyons’s contention on appeal is that the district court abused its
discretion in reaching this conclusion. According to Lyons, the court erred
by misapplying Hegwood, which provides that “[t]he district court’s action is
better understood as imposing, not modifying, a sentence, because the
sentencing is being conducted as if all the conditions for the original sentencing were
again in place with the one exception” of the FSA’s changes. Id. at 418–19
(emphasis added). Specifically, Lyons contends the district court erred when
it “ignore[d] the fact that the Government dismissed [the] sentencing
enhancement information pursuant to the plea bargain agreement that [led]
to Lyons entering his guilty plea.” 4 The Government, however, asserts that
“[c]ontrary to Lyons’[s] argument, the district could have considered the
unused enhancement at the 2009 sentencing proceeding, and therefore [it]
did not abuse its discretion by considering that information in its 2020
order.” We reach the same conclusion.
It is true that the district court did not cite Hegwood in its denial of
Lyons’s motion for a sentence reduction under the FSA. Nonetheless, the
district court implicitly recognized its duty to “impose” a sentence “as if all
the conditions for the original sentencing were again in place with the one
reduce his statutory maximum sentence from life imprisonment to 40 years. 21 U.S.C.
§ 841(b)(1)(B).
4
Lyons also asserts that “to the extent that the district court relied on the
collateral-attack waiver in Lyons’[s] plea agreement as a basis for denying a reduction, that
was also an abuse of discretion.” Lyons cites United States v. Cooley, 590 F.3d 293, 296–97
(5th Cir. 2009), to support this assertion. We do not address this contention, however,
because we conclude that nothing in the district court’s order indicates that it considered
Lyons to have waived his right to move for a sentence reduction under the FSA.
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exception” of the changes in the law wrought by the FSA. Hegwood, 934 F.3d
at 418–19. The district court noted in its denial order that “a substantial
number of factors went into the determination of the original sentence
beyond the sentencing guideline range that might have been before the
sentencing judge based on the final Pre-Sentence Investigation Report.” The
district court then highlighted the parties’ plea agreement, in which the
Government agreed to dismiss the pending sentencing enhancement
information in Lyons’s case in exchange for his guilty plea and his agreement
not to contest his sentence. The district court thus inferred that the plea
agreement, and the § 851 enhancement information underlying it, were
things that the district court could have considered in Lyons’s 2009
sentencing and were therefore factors it could take into account in weighing
Lyons’s present motion for a sentence reduction. The district court
ultimately concluded that given the valuable consideration of both parties
reflected by the plea agreement, it would exercise its discretion to deny
Lyons’s motion.
As also noted by the Government, “the district court would have been
able to acknowledge that Lyons qualified for an unused enhancement [at
Lyons’s initial sentencing], because Lyons’[s] presentence report listed—
with no objections—a prior felony drug offense, and because the
[G]overnment had followed the procedure in § 851 to increase his statutory
minimum sentence under § 841” (even though it agreed not to pursue the
enhancement in exchange for Lyons’s plea). Lyons points us to no authority
to the contrary, and we are aware of none. Instead, Hegwood instructs that a
district court should make an FSA sentence reduction determination “as if
all the conditions for the original sentencing were again in place . . . .” Id. at
419. And a defendant’s criminal history is indeed one of the factors that a
court considers in imposing a sentence. 18 U.S.C. § 3553(a); see also United
States v. Smith,
440 F.3d 704, 709 (5th Cir. 2006).
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Accordingly, we cannot say that by denying Lyons’s motion the
district court made an “error of law or base[d] its decision on a clearly
erroneous assessment of the evidence.” Larry, 632 F.3d at 936 (internal
quotation marks and citation omitted). “Eligibility for resentencing under
the First Step Act does not equate to entitlement” to a sentence reduction.
United States v. Batiste,
980 F.3d 466, 471 (5th Cir. 2020); see also United
States v. Abdul-Ali,
19 F.4th 835, 837–38 (5th Cir. 2021). We discern no
abuse of discretion in the district court’s denial of Lyons’s motion.
AFFIRMED.
9
