UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v. CURTIS LEROY ROBERTSON, Defendant

- Appellant. No. 20

- 6014 (D.C. No. 5:07

- CR

- 00056

- C

- 1) (W.D. Okla.)

_________________________________ ORDER AND JUDGMENT *

__________________ ______________ Before PHILLIPS , SEYMOUR , and CARSON , Circuit Judges.

_________________________________ In this appeal, Defendant Curtis Leroy Rob ert son argues that the district court erred by not recognizing its full discretion to reduce his sentence under the First Step Act of 2018 , Pub. L. 115

- 391 , 132 Stat. 5194

. In June 2007 , a jury convicted Robertson of four charges: (1) conspiracy to manufacture and to possess with the intent to distribute 50 grams or more of cocaine base (crack cocain e) , in violation of 18 U.S.C. § § 846 and 841 (a)(1), (b)(1)(A) ; (2) possession with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) , (b)(1)(A); (3) possession of a firearm in furtherance of a drug

- trafficking

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It m ay be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 14, 2020 Christopher M. Wolpert Clerk of Court2 crime, in violation of 18 U.S.C. § 924(c)(1)(A) ; and (4) felon in possession of a firear m , in violation of 18 U.S.C. § 922(g)(1)

. I n September 2007 , the district court sentenced Robertson to concurrent terms of statutory life imprisonment on the 21 U.S.C. §§ 841 and 846 counts , 1 sixty consecutive months on the 18 U.S.C. § 924(c) count, and 120 concurrent months on the 18 U.S.C. § 922(g)(1) count

. We affirmed the convictions. See United States v. Robertson , 297 F. App’x 722 (10th Cir. 2008) (unpublished).
In October 2019, Robertson filed a motion for a sentence reduction under Section 404 of the First Step Act (“Motion”)

. He argue d that by making the Cocaine

Sentencing

- Disparity

- Reduction provision of the Fair Sentencing Act of 2010
retroact ive for covered offenses like his ( crack

- cocaine offense s for which the Fair Sentencing Act had modified the statutory penalties), the First Step Act gave the district court discretion to undo his mandatory life sentenc e and to reevalua te his designation a s a career offender under U.S.S.G. § 4B1. 1 . He also argued that the First Step Act gave the district court discretion to lower his sentence after reconsidering the 18 U.S.C. § 3553(a) factors

. In response to this Motion , the district court agreed that Rob ert son ’s crack

cocaine convictions were “covered offenses,” making him eligible for a reduced sentence under the retroactively applied Fair Sentencing Act

. B ut it exercised discretion only to reduce Robertson’s previousl y imposed statutory mandatory life

1 Before trial, t he government filed an Information under 21 U.S.C. § 851 identifying two “felony drug offenses

. ”3 sentence . It considered itself lacking discretion to reevaluate Robertson’s status as a career offender under U.S.S.G. § 4B1.1

. Giv en that , t he court reduce d Robertson’s
sentence to a low

- end guideline sentence of 360 mon ths. The First Step Act authoriz es district courts to “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 .” But before Robertson’s First Step Act sentencing in January 2020 , our circuit had not decided whet her this language allowed district courts discretion to reevaluate a defendant’s earlier career - offender designation under U.S.S.G. § 4B1. 1 . In particular, our circuit had not decided whether a district court could re assess its earlier ruling that a defend ant’s previous felony convictions qualified as crimes of violence or controlled

- substance offenses under § 4B1.1 . N or had our circuit ruled on whether the First Step Act gives district
courts discretion to vary down w ard after reapplying the factors list ed at 18 U.S.C. § 3553(a)

. Left in this spot, t he district court relied on cases from other circuits holding that district courts had no discretion to review a defendant’s career - offender designation

. Appellant’s App. Vol. I at 78 ( first citing United States v. Hegwood , 934 F.3d 414 (5th Cir.) , cert. denied , 140 S. Ct. 285 (Mem.) (2019) ; and then citing United States v. Wirsing , 943 F.3d 175 (4th Cir. 2019) )

. The court did not comment on whether it believed it had discretion to reapply the 18 U.S.C. § 3553(a) factors in setting the sentence

.4 In September 2020, during the pendency of Robertson’s appeal, we decided United States v. Brown , 974 F.3d 1137 (10th Cir. 2020) , which held th at the First Step Act in fact g i ve s district court s discretion to reconsider wh ether t he defendant would still be designated as a career offender in light of “subsequent decisional law that clarifies (not amends) the related career offender provision at issue

. ” I d . at 1139

– 40 . In addition, Brown cited United States v. Mannie , 971 F.3d 1145, 115 8 n.11 (10th Cir. 2020) for the proposition that the First Step Act gives district courts discretion to vary downward based on the 18 U.S.C. § 3553(a) factors in a First Step Act proceedin g. 974 F.3d at 1146 n.5. Notably, the defendant in Bro wn had challenged his career

- offender status by attacking the same state

- felony offense used as a predicate crime of violence to qualify Robertson as a career offender, that is, Oklahoma’s pointing

- a - firearm felony

. See id. at 1139 , 1140; see also Okla. Stat. tit. 21 , § 1289.16 ( 2017 ). A s Brow n recognized, we have held that this Oklahoma felony no longer qualifie s as a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e)

. See Brown , 974 F.3d at 1139, 1141 (citing United States v. Titties , 852 F.3d 1257, 1266, 1272, (10th Cir. 2017) )

. This being so, we remanded in Brown for the district court to exercise its discretion to choose whether to reconsider Brown’s career - offender status , as well as the appropriateness of his sen tence after considering the 18 U.S.C. § 3553(a) factors

. Id

. at 1145

– 46, 1146 n.5

.5 Because he is in the same legal position as Brown, Robertson deserves the same relief. Accordingly, we reverse and remand for further proceedings in accordance with this order

.

Entered for the Court
Gregory A. Phillips Circuit Judge