United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 28, 2022 Decided June 3, 2022

No. 20-3058

UNITED STATES OF AMERICA,

APPELLEE

v.

MICHAEL PALMER, ALSO KNOWN AS TONY, ALSO KNOWN AS 

KNOT, ALSO KNOWN AS JAMES,

APPELLANT

Consolidated with 20-3060

Appeals from the United States District Court

for the District of Columbia

(No. 1:89-cr-00036-1)

Jonathan Zucker, appointed by the court, argued the cause

and filed the briefs for appellant.

Peter S. Smith, Assistant U.S. Attorney, argued the cause 

for appellee. With him on the brief were Chrisellen R. Kolb, 

Nicholas P. Coleman, and Timothy R. Cahill, Assistant U.S. 

Attorneys. Mark Hobel, Assistant U.S. Attorney, entered an 

appearance.
2

Before: HENDERSON and JACKSON*, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: In this 

consolidated appeal, Michael Palmer mounts two challenges to 

a life sentence for running a continuing criminal enterprise

(CCE) centered around crack cocaine distribution. See 21 

U.S.C. § 848(b). In particular, Palmer appeals the district 

court’s denials of his motions for relief under the First Step Act 

of 2018 and 28 U.S.C. § 2255. After the district court issued its

First Step Act order, we decided United States v. White, 984 

F.3d 76 (D.C. Cir. 2020), in which we elaborated on First Step 

Act proceedings. Because it is unclear whether the district court 

began from the correct statutory mandatory minimum sentence

in light of White, we remand the First Step Act appeal to the 

district court for it to clarify the applicable baseline; and, 

because the district court could change Palmer’s sentence on 

remand, we hold the section 2255 appeal in abeyance for now.

I. BACKGROUND

A. STATUTORY BACKGROUND

As modified by the Anti-Drug Abuse Act of 1986, Pub. L. 

No. 99-570, § 1253, 100 Stat. 3207, 3207-14 to 3207-15 

(codified as amended at 21 U.S.C. § 848), a CCE offense 

includes a felony violation of the federal drug laws that is part 

of a series of drug-law violations undertaken in concert with 

five or more other persons. See 21 U.S.C. § 848(c) (1988).

1

* Circuit Judge Jackson was a member of the panel at the time 

the case was argued but did not participate in this opinion.
3

1

 In 1989, when Palmer was sentenced, 21 U.S.C. § 848 

provided, in relevant part:

(a) Penalties; forfeitures

Any person who engages in a continuing criminal 

enterprise shall be sentenced to a term of imprisonment 

which may not be less than 20 years and which may be 

up to life imprisonment, to a fine not to exceed the greater 

of that authorized in accordance with the provisions of 

title 18 or $2,000,000 if the defendant is an 

individual . . . , and to the forfeiture prescribed in section 

853 of this title. 

(b) Life imprisonment for engaging in continuing criminal 

enterprise

Any person who engages in a continuing criminal 

enterprise shall be imprisoned for life and fined in 

accordance with subsection (a) of this section, if—

(1) such person is the principal administrator, 

organizer, or leader of the enterprise or is one of 

several such principal administrators, organizers, 

or leaders; and

(2) (A) the violation referred to in [subsection (c)(1)]

of this section involved at least 300 times the 

quantity of a substance described in subsection 

841(b)(1)(B) of this title . . . .

(c) “Continuing criminal enterprise” defined

For purposes of subsection (a) of this section, a person 

is engaged in a continuing criminal enterprise if—
4

Although the original CCE statute included a ten-year 

mandatory minimum, see Comprehensive Drug Abuse

Prevention and Control Act of 1970, Pub. L. No. 91-513, § 408, 

84 Stat. 1236, 1265; see also Anti-Drug Abuse Act of 1988, 

Pub. L. No. 100-690, § 6481(a), 102 Stat. 4181, 4382

(mandatory minimum in section 848(a) increased from ten to 

twenty years), the Congress inserted the “Super CCE” 

provision, mandating a life sentence if the offender is one of 

the “principal administrators, organizers, or leaders” of the 

enterprise and the underlying felony “involved at least 300 

times the quantity of a substance described in” 21 U.S.C. 

§ 841(b)(1)(B), see 21 U.S.C. § 848(b) (1988); see also United 

States v. Williams-Davis, 90 F.3d 490, 510 (D.C. Cir. 1996)

(detailing genesis of Super CCE provision).

(1) he violates any provision of this subchapter or 

subchapter II of this chapter the punishment for 

which is a felony, and 

(2) such violation is a part of a continuing series of 

violations of this subchapter or subchapter II of 

this chapter—

(A) which are undertaken by such person in 

concert with five or more other persons with 

respect to whom such person occupies a 

position of organizer, a supervisory 

position, or any other position of 

management, and 

(B) from which such person obtains substantial 

income or resources. 

21 U.S.C. § 848 (1988). 
5

Elsewhere in the Anti-Drug Abuse Act of 1986, the 

Congress established a quantity-based sentencing regime that 

punished crack cocaine offenses 100 times more harshly than 

powder cocaine offenses. See § 1002, 100 Stat. at 3207–2 to 

3207–4 (codified at 21 U.S.C. § 841(b)(1) (1988)). For 

example, a conviction of possession of 5 grams of crack 

cocaine with intent to distribute called for the same five-year 

mandatory minimum prison sentence as a conviction of 

possession of 500 grams of powder cocaine with intent to 

distribute. See id.; Dorsey v. United States, 567 U.S. 260, 263–

64 (2012). Incorporating those quantities into the Super CCE 

offense’s “300 times” threshold, the leader of a drug trafficking 

operation could be convicted of the Super CCE offense based 

on 1,500 grams of crack cocaine or 150,000 grams of powder 

cocaine.2

Over the next two decades, the United States Sentencing 

Commission (USSC or Commission) “and others in the law 

enforcement community strongly criticized [the] Congress’ 

decision to set the crack-to-powder mandatory minimum ratio 

at 100-to-1.” Dorsey, 567 U.S. at 268. “[A]lthough the 

Commission thought that it was reasonable to conclude that 

‘crack cocaine poses greater harms to society than does powder 

cocaine,’” Terry v. United States, 141 S. Ct. 1858, 1861 (2021) 

(quoting USSC, Special Report to the Congress: Cocaine and 

Federal Sentencing Policy 195–97 (Feb. 1995) (1995 Report)), 

2

In his section 2255 appeal, Palmer contends that his previous 

counsel was ineffective for not arguing that the single, underlying 

felony violation referenced in 21 U.S.C. § 848(c)(1)—not the series 

of violations referenced in subsection (c)(2)—must involve 1,500

grams of crack cocaine to trigger the Super CCE provision. See 

United States v. Atencio, 435 F.3d 1222, 1230–31 (10th Cir. 2006).

Because we do not reach the section 2255 appeal, we need not 

address Palmer’s argument.
6

the Commission determined that the 100-to-1 disparity was too 

large because, inter alia, it overstated the comparative harms

of crack and powder cocaine, defeated the “‘proportionality’ 

goal” of punishing prolific drug traffickers more severely than 

retail-level dealers and created a perception that the sentencing 

regime was race-based because those convicted of crack

cocaine offenses were disproportionately black, Dorsey, 567 

U.S. at 268–69 (citing Kimbrough v. United States, 552 U.S. 

85, 97–98 (2007); 1995 Report at 197–98; USSC, Special 

Report to Congress: Cocaine and Federal Sentencing Policy 8 

(Apr. 1997); USSC, Report to Congress: Cocaine and Federal 

Sentencing Policy 91, 103 (May 2002); USSC, Report to 

Congress: Cocaine and Federal Sentencing Policy 8 (May 

2007)).

In the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 

124 Stat. 2372, the Congress responded to the Commission’s 

call for reform and reduced the crack-to-powder disparity to 

18-to-1. Terry, 141 S. Ct. at 1861. To narrow the gap, section 

2 of the Fair Sentencing Act left the powder quantities the same 

and increased the crack cocaine quantity thresholds that 

triggered mandatory minimums. § 2(a), 124 Stat. at 2372. In 

relevant part, the triggering quantity increased from 5 grams to 

28 grams. Id. § 2(a)(2), 124 Stat. at 2372. The Fair Sentencing 

Act therefore increased the threshold to trigger a mandatory life 

sentence under the Super CCE provision from 1,500 grams to 

8,400 grams (300 times 28 grams). “These changes did not 

apply to those who had been sentenced before 2010.” Terry, 

141 S. Ct. at 1861. 

Enter the First Step Act of 2018, Pub. L. No. 115-391, 132 

Stat. 5194. The First Step Act made the Fair Sentencing Act’s 

quantity changes retroactive and gives the court the discretion 

to reduce the sentences of certain crack cocaine offenders. See

First Step Act § 404, 132 Stat. at 5222; Terry, 141 S. Ct. at 
7

1862. Under section 404 of the First Step Act, a defendant who 

committed a “covered offense” may move for 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.” § 404(b), 132 Stat. at 5222. A “‘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” the 

enactment of the Fair Sentencing Act in 2010. See id. § 404(a), 

132 Stat. at 5222. 

B. FACTUAL AND PROCEDURAL BACKGROUND

In the late 1980s, Michael Palmer ran a large-scale drug 

conspiracy that sold crack cocaine in Washington, D.C. In 

1989, a jury convicted him on twelve counts, including,

significantly, running a CCE “involving more than 1500 

grams” of crack cocaine and thus triggering the Super CCE 

provision. United States v. Harris, 959 F.2d 246, 253 (D.C. Cir. 

1992) (per curiam). After sentencing Palmer to the statutorily 

required mandatory minimum—life without the possibility of 

parole, 21 U.S.C. § 848(b) (1988)—the sentencing judge

commented that Palmer’s sentence was “long and harsh” 

because his “conspiracy brought between 100 and 200 

kilo[gram]s of crack [cocaine] into this city; sold it in several 

neighborhoods; created or supported hundreds, if not 

thousands, of addicts”; and “created havoc and misery in [its] 

path.” App. 19–20. The Presentence Investigation Report also 

estimated that Palmer’s operation distributed more than 150 

kilograms of crack cocaine. More broadly, in discussing the 

“sentencing principles” behind the sentences for Palmer and his 

lieutenants, the sentencing judge noted that 

more important than punishment is . . . 

deterrence. Deterrence means sending a 
8

message to others. The message is this: if you 

bring large amounts of drugs into the District of 

Columbia for sale, and particularly if it’s 

operated with weapons and with violence, you 

will go to the penitentiary for a long time, 

perhaps for life. 

Tr. of Harris Sentencing, at 4. The sentencing judge also

remarked, “In the 25 years . . . that I have been on the bench, I 

have seldom, if ever, seen a case in which the evidence was as 

overwhelming as it was in this case . . . and particularly [as to] 

the guilt of Mr. Palmer.” Tr. of Palmer Sentencing, at 7.

We affirmed Palmer’s convictions on direct appeal,

Harris, 959 F.2d at 252–57, and over the last twenty years, 

Palmer has pressed numerous claims seeking relief under 28 

U.S.C. § 2255, see United States v. Palmer, 97 F.3d 593 

(Table) (D.C. Cir. 1996) (per curiam); United States v. Palmer, 

296 F.3d 1135 (D.C. Cir. 2002); United States v. Palmer, 902 

F. Supp. 2d 1, 4, 10–11 (D.D.C. 2012). In 2012, the district 

court consolidated Palmer’s claims and partially granted his 

section 2255 petition, vacating five of his convictions based on 

changes in the law of merger. Palmer, 902 F. Supp. 2d at 10–

12. The district court, however, left the CCE conviction and 

sentence intact, in addition to six other counts, id. at 11–12, 

and, in 2015, it issued, at Palmer’s request, an amended 

judgment reflecting the vacatur of the merged counts, App. 31.

In 2017, we affirmed the amended judgment. See United States 

v. Palmer, 854 F.3d 39, 41–42 (D.C. Cir.), cert. denied, 138 S. 

Ct. 286 (2017).

On September 28, 2018, Palmer filed a pro se section 2255 

petition, which his counsel supplemented on August 11, 2019.

In an unpublished order on July 2, 2020, the district court 

denied the supplemented motion, concluding that Palmer’s 
9

section 2255 petition was successive under 28 U.S.C. § 2255(h)

and therefore the court “lack[ed] jurisdiction to rule on the 

motion” without this court’s certification. App. 127–29. On 

July 31, 2020, Palmer’s counsel requested a certificate of 

appealability regarding the section 2255 order, arguing, inter 

alia, that his motion was not successive because it attacked the 

2015 amended judgment, which amounted to a “new 

judgment” per Magwood v. Patterson, 561 U.S. 320 (2010). 

Shortly thereafter, the district court granted the certificate of 

appealability.

On January 19, 2020, while his section 2255 petition was 

pending, Palmer filed the primary motion at issue here: a pro 

se motion for a reduced sentence pursuant to section 404 of the 

First Step Act. Having served more than thirty years by then,

Palmer challenged only the life sentence associated with the 

Super CCE conviction. In his motion, Palmer first argued that

he was eligible for relief because the change in the drug 

quantity associated with 21 U.S.C. § 848(b) made it a “covered 

offense” under section 404(a) of the First Step Act. He asked

the court to exercise its discretion under section 404(b) to 

reduce his sentence to time served and to release him on his 

own recognizance. In assessing the 18 U.S.C. § 3553(a) 

sentencing factors, he urged the court to focus on mitigating 

rehabilitation evidence and to consider his post-conviction 

conduct. Id. at 29–30.

On the same day it issued the section 2255 order, the 

district court denied Palmer’s First Step Act motion. Id. at 138–

49 (First Step Act Order). The district court first determined 

that Palmer was not eligible for First Step Act relief because 

the relevant drug quantity for eligibility is “the actual quantity 

the defendant is held responsible for at sentencing,” not the 

drug quantity in the statute of conviction. Id. at 142–46. After 

noting the large quantities of drugs attributable to Palmer’s 
10

operation, the district court concluded that the Congress “did 

not intend to sweep in defendants who were still above the 

increased mandatory minimum quantity threshold.” Id. at 146. 

In the alternative, the district court concluded that “[e]ven if 

Palmer were eligible under the First Step Act . . . the Court 

would not in its discretion grant his motion for a reduced 

sentence.” Id. at 147. In the key paragraph, the court continued:

Palmer is not the type of offender contemplated 

by either the Fair Sentencing Act or the First 

Step Act. The Fair Sentencing Act sought to 

reduce sentencing disparities between crack and 

powder cocaine defendants by reforming the 

sentencing regimes applicable to crack cocaine 

defendants. Section 404 of the First Step Act 

merely authorized the retroactive application of 

the Fair Sentencing Act. Palmer faces no 

disparity between the mandatory minimum he 

was sentenced under and the one he would have 

faced “if sections 2 and 3 of the Fair Sentencing 

Act . . . were in effect at the time.” 132 Stat. 

5194 § 404(b). 

Id. (ellipsis in original). 

The court then concluded that the section 3553(a) factors 

did not militate in favor of a sentence reduction. After 

highlighting two of the factors—(1) the nature of the offense 

and the characteristics of the defendant and (2) the need for the 

sentence because of the seriousness of the offense—the court 

noted Palmer’s disciplinary sanctions during his incarceration 

and the sentencing judge’s comments regarding the breadth of 

the Palmer operation and its effect on the community. Finally, 

the court commented that it had “carefully considered the 

impressive supportive letters . . . from Palmer’s family and 
11

friends” but that the seriousness of Palmer’s crimes meant that 

“a sentence reduction [was] not warranted.” Id. at 148. 

In letters sent to the district court on August 12 and 13, 

2020, Palmer, acting pro se, wrote that he wanted to appeal the 

district court’s orders denying his First Step Act motion and 

section 2255 petition. Id. at 161–64, 167–74. Palmer filed that 

letter pro se because his counsel had passed away on August 3, 

2020, after having filed Palmer’s requested certificate of 

appealability on July 31. In his August 12 letter, Palmer stated

that he learned of his counsel’s death on August 7. In a 

September 3, 2020 order, the district court concluded that the 

letters “provide adequate notice that [Palmer] intends to appeal 

under the motion his counsel filed on July 31, 2020, which the 

Court will therefore consider a Notice of Appeal.” Order, 

United States v. Palmer, Cr. No. 89-36 (D.D.C. Sept. 3, 2020),

ECF No. 510.

II. ANALYSIS

A. FIRST STEP ACT ORDER

We have appellate jurisdiction of the First Step Act Order 

under 28 U.S.C. § 1291. See United States v. Lawrence, 1 F.4th 

40, 45 (D.C. Cir. 2021). “[T]he abuse-of-discretion standard of 

review applies to appellate review of all sentencing decisions.” 

White, 984 F.3d at 85 (quoting Gall v. United States, 552 U.S. 

38, 49 (2007)). We review statutory interpretation questions de 

novo. Id.

Palmer first argues, and the government concedes, that in 

light of White, the district court incorrectly concluded that 

Palmer is ineligible for First Step Act relief. The government 

argues, however, that remand is inappropriate because 

Palmer’s notice of appeal was untimely and because we can 

rely on the district court’s alternative holding—that even if 
12

Palmer is eligible, the court would not exercise its discretion to 

grant relief. See App. 147–48. We disagree. We conclude that 

the court granted—by implication if not expressly—an 

extension to file the notice of appeal and because it is unclear 

whether the district court’s exercise of discretion started from 

the correct mandatory minimum post-White, we remand for 

clarification. See Chavez-Meza v. United States, 138 S. Ct. 

1959, 1965 (2018) (“If the court of appeals considers a[]

[sentencing] explanation inadequate in a particular case, it can 

send the case back to the district court for a more complete 

explanation.”).

1. Timeliness of Notice of Appeal

Under Federal Rule of Appellate Procedure 4(b)(1)(A), the 

government asserts, Palmer’s pro se notice of appeal is 

untimely because it was due 14 days after the district court 

entered the First Step Act Order on July 2, 2020. It was not 

placed in the prison mail system until August 12, 2020—41 

days after the entry of the order. The government contends that 

Palmer “has offered no justification for his failure to note an 

appeal on or before July 16, 2020,” and that we should dismiss

his challenge. In rebuttal, Palmer’s appellate counsel 

acknowledges that the notice arrived well after the 14-day 

deadline but asserts that the notice was nevertheless timely 

because the district court implicitly granted a 30-day extension

until August 16 under Rule 4(b)(4) when it treated the August 

12 letter as a notice of appeal and ordered its filing. Fed. R. 

App. P. 4(b)(4) (“Upon a finding of excusable neglect or good 

cause, the district court may—before or after the time has 

expired, with or without motion and notice—extend the time to 

file a notice of appeal for a period not to exceed 30 days from 

the expiration of the time otherwise prescribed by this Rule 

4(b).”).
13

We have previously “declined [an appellant’s] invitation 

to equate the ministerial act of docketing a tardy notice of 

appeal with an implicit grant of an extension of time by the 

district court.” United States v. Long, 905 F.2d 1572, 1574 

(D.C. Cir. 1990). In Long, a defendant-appellant also filed a 

notice after the Rule 4(b) deadline and the district court 

docketed the notice. Id. at 1574. Writing for the court, thenJudge Thomas reasoned: “Docketing a notice of appeal is a 

clerical task, and does not require the approbation of the trial 

judge. It thus presents no occasion for a party to make a 

showing of excusable neglect.” Id. It was therefore important 

that there was no evidence the district judge saw the notice or 

had an opportunity to determine whether there was excusable 

neglect. We remanded to the district court for it to determine 

whether excusable neglect existed. Id. at 1575. 

We noted in Long, however, that “there may be cases in 

which an implicit finding of excusable neglect would be less of 

a fiction.” Id. at 1574 n.2. For example, if “a trial judge takes 

some explicit action with respect to a tardy appeal, the judge at 

a minimum is aware of the appeal; under these circumstances, 

his action could arguably be construed as an implicit finding of 

excusable neglect.” Id. The September 3, 2020 order showsthat 

the district judge was “at a minimum aware of the appeal”: he 

noted the denial of Palmer’s section 2255 and First Step Act 

motions, indicated that he had read Palmer’s handwritten 

letters by noting that they “provide[d] adequate notice that he 

intend[ed] to appeal” and mentioned the death of Palmer’s 

counsel on August 3. Order, United States v. Palmer, Cr. No. 

89-36 (D.D.C. Sept. 3, 2020), ECF No. 510. The district judge 

also ordered the docketing of the letters and affixed his 

signature to those orders. In addition, Palmer expressed his 

desire to appeal on page five of one letter and across two pages

of another. At bottom, the order and letters manifest the district 

judge’s analysis and awareness of Palmer’s situation—
14

including that Palmer was in lockdown beginning in February 

2020 due to the coronavirus pandemic—neither of which

existed in Long. Indeed, the district judge’s confirmation that 

the letters provided “adequate notice” evinces a level of 

approbation absent from Long. Accordingly, it is clear to us 

that the district judge’s order “constitute[s] an implicit 

extension of time,” Long, 905 F.2d at 1574 n.2, and a remand 

for the court to do so again would waste time and judicial 

resources. 

2. Merits

Decided five months after the district court issued its First 

Step Act Order, White provides our Circuit’s framework to 

evaluate First Step Act motions. See 984 F.3d at 85–93. First, 

under section 404(a), the court must determine whether a 

defendant is eligible for relief—that is, whether the movant 

committed a “covered offense,” 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.” First 

Step Act § 404(a), 132 Stat. at 5222. In White, the district court 

had determined that even though the appellant-defendants were 

“eligible” for relief, relief was “not ‘available’” because, 

“[according to] judge-found drug quantities,” the statutory 

penalties for certain counts were not modified by section 2 of 

the Fair Sentencing Act. 984 F.3d at 92. We reversed, holding 

that there is no “availability test” and that in assessing 

eligibility, the district court “cannot determine, using judge- or 

jury-found drug quantities, what effect the Fair Sentencing Act 

‘would have had’ on a defendant’s sentence.” Id. at 86–87. 

As occurred in White, the district court here used judgefound drug quantities to determine that Palmer was not eligible 

for section 404 relief. As described above, supra at 6, section 
15

2(a) of the Fair Sentencing Act increased the threshold quantity 

in 21 U.S.C. § 841(b)(1)(B) necessary to trigger certain 

mandatory minimum penalties. See 124 Stat. at 2372. The 

Super CCE offense incorporated those threshold quantities by 

requiring the involvement of “at least 300 times the quantity of 

a substance described in subsection 841(b)(1)(B).” 21 U.S.C. 

§ 848(b)(2)(A) (1988). With the retroactive application of the 

Fair Sentencing Act, 8,400 grams—rather than 1,500 grams—

became the minimum triggering quantity to support a Super 

CCE offense. See Fair Sentencing Act § 2(a), 124 Stat. at 2372

(noting increase from 5 to 28 grams in 21 U.S.C. 

§ 841(b)(1)(B)(iii)). Accordingly, as the government agrees, 

Palmer’s Super CCE offense is a “covered offense” and the 

district court, which did not have the benefit of our decision in 

White, incorrectly gauged Palmer’s section 404 eligibility

because “whether an offense is ‘covered’ does not depend on 

the actual drug amounts attributed to a defendant.” 984 F.3d at 

86. 

Second, under section 404(b), a “court that imposed a 

sentence for a covered offense may . . . impose a reduced 

sentence as if sections 2 and 3 of the Fair Sentencing Act . . . 

were in effect at the time the covered offense was committed.” 

First Step Act § 404(b), 132 Stat. at 5222. Put simply, once a 

defendant is considered eligible, the district court exercises its 

“broad discretion” to decide “whether it should reduce the 

sentence.” White, 984 F.3d at 88 (quoting United States v. 

Hudson, 967 F.3d 605, 610 (7th Cir. 2020)); see also First Step 

Act § 404(c) (“Nothing in this section shall be construed to 

require a court to reduce any sentence pursuant to this 

section.”), 132 Stat. at 5222.

White also spells out what considerations are relevant in 

assessing whether to grant a sentence reduction. Relying on 

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), we began 
16

by noting the remedial purpose of the First Step Act, including 

that it and the Fair Sentencing Act “are strong remedial 

statutes, meant to rectify disproportionate and racially disparate 

sentencing penalties.” White, 984 F.3d at 90. We then agreed 

with the Seventh Circuit: to further the goal of the First Step 

Act, a “district court may consider all relevant factors when 

determining whether an eligible defendant merits relief under 

the First Step Act.” Id. (quoting Hudson, 967 F.3d at 611). We 

specified that certain factors, including “new statutory 

minimum or maximum penalties; current Guidelines; postsentencing conduct; and other relevant information about a 

defendant’s history and conduct,” ensure that a sentence is 

“sufficient, but not greater than necessary, to fulfill the 

purposes of [18 U.S.C.] § 3553(a).” Id. (emphasis added) 

(quoting Hudson, 967 F.3d at 609). We stressed the importance 

of post-sentencing conduct, id., before noting that on remand 

in that case, the district court must “give proper consideration 

to the sentencing factors outlined in [section] 3553(a),” id. at 

93; see also Lawrence, 1 F.4th at 43–44. Consideration of the 

section 3553(a) factors in White was “especially important”

given the “complexity” of the record. 984 F.3d at 90.

3 Finally, 

3

 As we noted in White, “[e]very circuit court that has examined 

the issue has held that a district court may, or must, consider the 18 

U.S.C. § 3553(a) sentencing factors when passing on a motion for 

relief under section 404 of the First Step Act.” 984 F.3d at 90 (citing 

United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020); United 

States v. Easter, 975 F.3d 318, 323–26 (3d Cir. 2020); United States 

v. Jackson, 945 F.3d 315, 322 n.7 (5th Cir. 2019)). White is 

nonetheless slightly opaque as to whether section 3553(a) factors 

may or must be considered in all cases. See id. at 90–91 (district 

courts “may consider all relevant factors” and section 3553(a) factors 

are “especially important” in cases with “complex[]” records), 93 

(district court to consider section 3553(a) factors on remand). 

Subsequently, in Lawrence, we characterized White as having issued

a directive that district courts “must consider ‘all relevant factors[,]’ 
17

the district court’s sentence reduction decision “must be 

procedurally reasonable and supported by a sufficiently 

compelling justification.” Id. at 91 (quoting United States v. 

Boulding, 960 F.3d 774, 784 (6th Cir. 2020)); see also United 

States v. Collington, 995 F.3d 347, 359 (4th Cir. 2021) 

(adopting reasonableness review). 

Palmer challenges the district court’s treatment of the 

“relevant factors.” Primarily, he argues that the district court 

erred by using the wrong statutory minimum sentence in 

deciding whether to grant relief. Once again, White is 

instructive. In determining the “new statutory minimum” 

penalty that sets the lower bound of the district court’s 

discretion “to impose a sentence ‘as if section 2 . . . of the Fair 

Sentencing Act [was] in effect,’ the court must use the revised 

penalty range now applicable to the drug amount in the original 

statute of conviction.” White, 984 F.3d at 86.

For spearheading a crack cocaine network, a jury 

convicted Palmer of the Super CCE offense, a statute of 

conviction originally involving at least 1,500 grams of crack 

cocaine. Plainly, that amount is smaller than the 8,400 grams

necessary to trigger the Super CCE threshold under section 2(a) 

of the Fair Sentencing Act. 124 Stat. at 2372. The 1,500-gram 

including not only the sentencing factors outlined at 18 U.S.C. 

§ 3553(a), but potentially also ‘new statutory minimum or maximum 

penalties; current Guidelines; post-sentencing conduct; and other 

relevant information about a defendant's history and conduct.’” See 

Lawrence, 1 F.4th 40, 43–44 (quoting White, 984 F.3d at 90, 92–93). 

In Lawrence, the “sole and narrow question” was whether a First 

Step Act movant is categorically entitled to allocute before the 

district court rules on a section 404 motion for sentence reduction. 

See id. at 42, 46. Because the section 3553(a) factors were not 

necessary to the allocution holding, the directive is likely dicta.
18

amount, however, nonetheless qualifies for the baseline CCE 

offense, which has no minimum drug quantity threshold. See 

21 U.S.C. § 848(a). That offense includes a twenty-year 

mandatory minimum. Id. Twenty years, then, is the correct

mandatory minimum for a district judge to use in deciding 

whether to “impose a reduced sentence” for Palmer’s CCE 

offense under the First Step Act. First Step Act § 404(b), 124 

Stat. at 5222; accord White, 984 F.3d at 86 (using drug quantity 

in statute of conviction, rather than greater amount attributable 

to defendant’s conspiracy, to determine mandatory minimum). 

At the end of the key paragraph addressing the mandatory 

minima, the district court stated that “Palmer faces no disparity 

between the mandatory minimum he was sentenced under and

the one he would have faced ‘if sections 2 and 3 of the Fair 

Sentencing Act . . . were in effect at the time.’” App. 147. But 

there should be a disparity; Palmer was sentenced under the 

Super CCE statute and received the mandatory life sentence 

that he is currently serving, rather than the twenty-year 

mandatory minimum he would have faced using the drug 

quantity in the statute of conviction, as mandated by White. It 

is therefore unclear if the district court correctly applied “the 

legal requirements governing review of motions for reduced 

sentences under section 404(b) of the First Step Act.” White, 

984 F.3d at 92.4

We recognize that the district court may have used the 

judge- or jury-found drug quantities attributable to Palmer’s 

CCE to conclude that he exceeded the 8,400-gram threshold

and therefore would have received a life sentence even under

the higher threshold. Cf. id. at 88 (“The court may consider 

4 As the government acknowledged at oral argument, “when a 

court is making a discretionary determination, it has to understand 

what it’s choosing between.” Tr. of Oral Arg. 35:5–35:7.
19

both judge-found and jury-found drug quantities as part of its 

exercise of discretion.”). Indeed, it is possible that the district 

court implicitly recognized the twenty-year mandatory 

minimum by initially acknowledging earlier in the paragraph 

its discretion to lower Palmer’s sentence from life without 

parole. But such an inference conflicts with the court’s later 

statement that there is “no disparity” because the mandatory 

minimum is life. Given the anchoring effect of using the 

incorrect mandatory minimum sentence, see id. at 87, and the 

importance of mandatory minima to sentencing, see Alleyne v. 

United States, 570 U.S. 99, 112–13 (2013), we remand for the 

district court to clarify the “new [mandatory] minimum 

. . . penalt[y],” White, 984 F.3d at 90 (quoting Hudson, 967 

F.3d at 609); see also United States v. Graham, 317 F.3d 262, 

275 (D.C. Cir. 2003) (remanding when district court “may have 

applied” incorrect mandatory minimum); United States v. 

McKeever, 824 F.3d 1113, 1125 (D.C. Cir. 2016) (remanding 

for clarification because record was unclear and “law was in 

flux” and noting “we will not search for error when” remand

“will better serve the ends of justice”).

5

As for the remainder of the district court’s analysis, the 

district court properly acknowledged the remedial purpose of 

the Fair Sentencing Act and the First Step Act and explicitly 

5 Palmer also argues that the jury-found quantity of 1,500 grams 

is the only factual finding of a drug quantity in the case and that, in 

exercising its discretion, the district court should not have considered

the “100 to 200 kilo[gram]s of crack” cocaine referenced by the 

original sentencing judge, App. 19, nor the 150 kilograms referenced 

in the Presentence Report. The district court was operating without 

the benefit of White’s instruction to consider jury- or judge-found 

facts, 984 F.3d at 88, and we will leave it to the district court to 

address in the first instance whether the quantities qualify as “judgefound” under White. 
20

considered two of the section 3553(a) factors, App. 147–48, 

which are “especially important” in “complex[]” cases like this 

one, see White, 984 F.3d at 90–91. Although “there is no 

requirement that sentencing courts expressly list or discuss 

every Section 3553(a) factor,” United States v. Knight, 824 

F.3d 1105, 1110 (D.C. Cir. 2016), “express acknowledgment

of” the relevant factors and “mitigation arguments is of course 

helpful and encouraged,” see United States v. Pyles, 862 F.3d 

82, 94 (D.C. Cir. 2017), especially if there is no record of a 

hearing on the First Step Act motion for relief.

6 Because the 

district court ruled without the benefit of White and because the 

“new statutory minimum” frames the district court’s exercise 

of discretion, cf. Molina-Martinez v. United States, 578 U.S. 

189, 198–99 (2016) (detailing anchoring effect Federal 

Sentencing Guidelines have on “district court’s discretion”

(citation omitted)), we do not opine on the adequacy of its

consideration of “relevant factors” other than the “new 

statutory minimum,”7 White, 984 F.3d at 90 (citation omitted).

6

In White, we did not have the benefit of a hearing transcript

and remanded in part because the district court order “fail[ed] to 

mention” relevant mitigation arguments and rehabilitation evidence. 

984 F.3d at 93.

7

 Palmer argues that the district court did not adequately 

consider his post-sentencing rehabilitation evidence. As the district 

court acknowledged, App. 148, Palmer provided letters from family 

members and friends, id. at 37–39, 42, 56, 59, as well as 

unacknowledged evidence from prison officials and prison records 

detailing enrollment in a number of rehabilitative classes and 

programs, see id. 44–55, 57–58, 60–78, 111–15. On the other hand, 

Palmer’s prison disciplinary record lists over twenty incidents 

leading to sanctions, including at least six violent incidents. See id.

117–18.
21

B. SECTION 2255 ORDER

The district court concluded that it lacked jurisdiction of 

Palmer’s section 2255 petition because it was a “second or 

successive motion” under 28 U.S.C. § 2255(h). App. 127–29. 

To so conclude, the district court relied on Magwood v. 

Patterson, in which the Supreme Court held that “the phrase 

‘second and successive’ [in 28 U.S.C. § 2244(b)] must be 

interpreted with respect to the judgment challenged.” 561 U.S. 

at 333. Palmer argues that his “second in time [section] 2255 

motion is not an unauthorized successive motion because it is 

his first [section] 2255 motion challenging the amended 

judgment.” Appellant Br. 28. The crux of the issue is whether 

“there is a ‘new judgment intervening between the two [section 

2255] petitions.’” See Magwood, 561 U.S. at 341 (quoting 

Burton v. Stewart, 549 U.S. 147, 156 (2007)). Because on 

remand the district court has the authority to grant Palmer’s 

First Step Act motion and impose a new sentence with an 

accompanying new judgment, we will hold the section 2255 

appeal in abeyance pending resolution of the First Step Act 

proceedings. See Basardh v. Gates, 545 F.3d 1068, 1069 (D.C. 

Cir. 2008); Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936).

For the foregoing reasons, we reverse the district court’s 

judgment, remand for further proceedings consistent with this 

opinion and hold the section 2255 appeal in abeyance.

So ordered.