### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-2009
U NITED S TATES OF A MERICA, Plainti ff

-Appellee,

v.

G ENE C. S UTTON , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Central District of Illinois. No. 2:07-cr-20009-JES-DGB-1 — James E. Shadid
, Judge

.

____________________
A RGUED M AY 26, 2020

— D ECIDED J UNE 23, 2020

____________________ Before F LAUM, S CUDDER , and S T

. E VE , Circuit Judges

. S T

. E VE , Circuit Judge . Over a decade ago, the district court (then Chief Judge McCuskey) sentenced Gene Su tt on to histhen statutory minimum 15 years’ imprisonment for distributing cocaine base (“crack”) and carrying a fi rearm during a drug-tra ffi cking crime. In announcing the sentence, the court emphasized that it had no authority to reduce the sentence further or amend it later, excepton the government’s motion, and that the court’s authority had been so limited since the2 No. 19-2009

Sentencing Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1837. “Nobody’s going to change it,” the court told Su tt on. But Congress did change things when it passed the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Under§ 404 of this new law, a defendant sentenced for a covered offense (which includes Su tt on’s crack cocaine charge) maymove for the district court to impose a reduced sentence. Sutton submi tt ed his motion seeking relie f and the district court, now Judge Shadid, denied it. On Su tt on’s pro se appeal, we recruited counsel to submit supplemental brie fi ng on the narrow question of the proper vehi cle for a First Step Act motion. In other words, we asked the parties to brief how the First Step Act interacts with the Sentencing Reform Act, which, as Judge McCuskey recognized, generally prohibits a court from modifying a sentence.We hold that the First Step Act is its own procedural vehicle. The dispute between the part ies is, at this point, mostly semantic, though our conclusiondoes clarify that the only limits on the district court’s authority under the First Step Act come from the interpretation of the First Step Act itself. With that said, this is not the case to explore fully what those limits might be. We conclude that the district court did not abuse its discretion and, therefore, a ffi rm the judgment. I. Background

Su tt on pleaded guilty to his two charges in 2008 and admi tt ed that he distributed 124 grams of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1 )(A), and had carried a fi rearm in connection with that o ff ense, 18 U.S.C. § 924(c). Distributingmore than 50 grams of crack carried a 10-year statutory minimum sentence at the time, and § 924(c) required the court toNo. 19-2009 3

impose a fi ve-year sentence consecutive to that of the underlying o ff ense, 18 U.S.C. § 924(c)(1)(A )(i), (D)(ii). The minimum total sentence for Su tt on’s conduct was, thus, 15 years’ imprisonment. As sentencing approached, th e parties disagreed on the importance of this minimum sentence. Su tt on contended that he was entitled to a three-o ff ense-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. By his calculation, his Guidelines range should have been 147–168 months’ imprisonment (including th e 60 months for the § 924(c) charge) and so the minimum 180 -month sentence was appropriate. See U.S.S.G. § 5G1.1(b). The government, however, argued that Su tt on had lied under oath at his detention hearing.It opposed the three-level reduction and sought a further twolevel enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. This would have resulted in a sentencing range of 248–295 months. (The parties also di ff ered on whether Su tt on was responsible for 19 kilograms of powder cocaine, though it was irrelevant to the Guidelines calculation.)

The district court never resolv ed these disputes. Instead, the parties entered a sentencing agreement re fl ecting an agreed 180-month sentence. Su tt on and the government would “agree to disagree,” according to defense counsel, and the government likewise said it intended to “short-circuit th[e] process.” In imposing the sentence re fl ected in the agreement, the district court similarly asserted that the agreementwould “supersede the presentence report” and make all disputes “irrelevant” and “moot.” The year after entry of judgment in Su tt on’s case, Congress passed the Fair Sentencing Ac t of 2010, Pub. L. No. 111-220, 124 Stat. 2372. Section 2 of the Fair Sentencing Act raised from4 No. 19-2009

50 grams to 280 grams the amount of crack cocaine necessary to trigger the 10-year minimum sentence. See United States v. Shaw , 957 F.3d 734, 736–37 (7th Cir. 2020) (providing tables listing changes). This could have helped Su tt on, who had been convicted for distributing less than 280 grams, but theFair Sentencing Act was not initially retroactive for defendants sentenced before its e ff ective date, August 3, 2010. See Dorsey v. United States , 567 U.S. 260, 264 (2012). Congress made the Fair Sentencing Act retroactive for someone like Su tt on eight years later. Under the First Step Act, [a] court that imposed a sentence for a covered o ff ense may, on motion of the defendant, the Director of the Bureau of Prisons, the a tt orney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in e ff ect at the time the covered o ff ense was commi tt ed. First Step Act, § 404(b) (citation omi tt ed). A covered o ff ense is de fi ned as “a violation of a Federal criminal statute, the statutory penalties for which were modi fi ed by section 2 or 3 of the Fair Sentencing Act of 2010 that was commi tt ed before August 3, 2010.” Id. § 404(a) (citation omi tt ed); see Shaw , 957 F.3d at 739 (interpreting this de fi nition).

Su tt on moved for a reduced sentence in early 2019. (The parties have consistently agreed he is eligible for relief.) He primarily argued that the agreement entitled him to his newstatutory minimum—ten years—and, thus, immediate release. The government responded that Su tt on had already received a sentencing bene fi t from the agreement as is. The district court sided with the government and declined to reduceNo. 19-2009 5

Su tt on’s sentence further. In doing so, the court characterized the government’s sentencing agreement as being in exchange for Su tt on’s “withdrawal” of his objections to the PSR. Thus,it used probation’s amended Guidelines range, which assumed Su tt on had obstructed justice and was responsible for the 19 kilograms of powder cocaine. Su tt on unsuccessfully sought reconsideration and submi tt ed an untimely notice of appeal. II. JurisdictionWe start with some jurisdictional housekeeping. First, Sutton’s late notice of appeal does not deprive us of authority to hear this case. Federal Rule of Appellate Procedure 4(b),which governs the timing of criminal appeals, is a non-jurisdictional claim-processing ru le whose enforcement the government may either waive or forfeit. United States v. Ne ff

, 598 F.3d 320, 323 (7th Cir. 2010). The government has expressly waived its rights, so we consider the appeal on its merits.

Su tt on was also released from prison a month before oral argument, though the parties agree that his release does not moot the appeal. Su tt on is serving a fi ve-year term of supervised release. If we were to fi nd that the district court erred indenying a sentence reduction, it would not “automatically entitle him to less supervised release” but it would carry “great weight” in a motion to termin ate supervised release under 18 U.S.C. § 3583(e)(1). Pope v. Perdue, 889 F.3d 410, 415 (7th Cir. 2018) (citing United States v. Johnson , 529 U.S. 53 (2000)). Moreover, the parties also agree the First Step Act permits the district court to reduce Su tt on’s term of supervised release, because § 404(b) refers to imposing a reduced sentence and not just a term of imprisonment. Th e sentence includes not only the term of imprisonment but also the term of supervised6 No. 19-2009

release and any fi nes. See 18 U.S.C. §§ 3551, 3583. If we were to remand, the district court could decide whether to reduce Su tt on’s supervised release term and, in doing so, “factor in how much (if at all) it would have reduced [his] prison term.” United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020); see also United States v. Kelley, No. 19-30066, 2020 WL 3168518, at *3 n.5 (9th Cir. June 15, 2020) (same). There are, thus, at least two possible remedies. Because we can order “e ff ectual relief,” even if not Su tt on’s early release from prison, this appeal is not moot. Church of Scientology v. United States , 506 U.S. 9, 12 (1992).
III. Procedural VehicleWe now turn to the question on which we sought supplemental brie fi ng: what the proper procedural vehicle is for amotion under § 404(b) of the First Step Act. The problem presented is the interaction between the First Step Act and theSentencing Reform Act. The former permits an already sentenced defendant to request, an d a district court to impose, a reduced sentence. Under the la tt er, though, “[t]he court maynot modify a term of imprisonment once it has been imposed,” with three identi fi ed exceptions. 18 U.S.C. § 3582(c).

The fi rst exception under the Sentencing Reform Act permits a court to reduce a term of imprisonment for “extraordinary and compelling reasons” or for certain elderly prisoners.18 U.S.C. § 3582(c)(1)(A). Originally, only the Bureau of Prisons could submit a motion under this subsection, but the First Step Act added that a defendant can now fi le a motion himself after exhausting administrative remedies. See id. ; First Step Act, § 603(b)(1).No. 19-2009 7

The second exception is a catch-all: “the court may modify an imposed term of imprisonment to the extent otherwise expressly permi tt ed by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S. C. § 3582(c)(1)(B). Rule 35 is a limited remedy, available only within 14 days of sentencing for “clear error” or through the government’s motion based on substantial assistance. See Fed. R. Crim. P. 35; United States v. Townsend, 762 F.3d 641, 645 (7th Cir. 2014). Beyond that rule, we have previously identi fi ed only two statutes that “expressly permit[]” modi fi cation under this exception. The fi rst is the statute authorizing appellate review of sentences, 18 U.S.C. § 3742(f)–(g), and the second is the statute permi tt ing collateral a tt ack of sentences, 28 U.S.C. § 2255. See United States v. Bailey, 777 F.3d 904, 906 (7th Cir. 2015). Before the First Step Act, other circuits considering the question had added only 28 U.S.C. § 2106, the general statute permi tt ingappellate review, and 28 U.S.C. § 2241, the general habeas corpus statute. See United States v. Wirsing, 943 F.3d 175, 184 (4th Cir. 2019) (collecting cases). The third exception, § 3582(c)(2 ), allows the defendant orthe Bureau of Prisons to move to reduce a sentence for “a defendant who has been sentenced to a term of imprisonment based on a sentencing range th at has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with applicable po licy statements issued by the Sentencing Commission.” 18 U.S. C. § 3582(c)(2). The statute itself allows modi fi cation only of a sentence that is “based on” a sentencing range, so some se ntencing agreements are excluded. See, e.g. , Koons v. United States , 138 S. Ct. 1783, 1786 (2018). It also adopts the Sentencing Commission’s policy statements, which are binding, not advisory. Dillon v. United States , 560 U.S. 817, 819 (2010). These statements, among other8 No. 19-2009

things, prohibit a sentence reduction if an amendment fails to lower the defendant’s actual Guidelines range, require the court to “substitute only the amendments ... leav[ing] all other guideline application decisions una ff ected,” and limit the court’s authority to vary below the amended range. See U.S.S.G. § 1B1.10(a)(2)(B), (b)(1), (b)(2)(A).

Su tt on’s pro se motion invoked § 3582(c)(2), but everyone agrees that was the wrong vehicl e. (This mistake is of no consequence, as we review pro se fi lings by substance, not label. United States v. Antonelli, 371 F.3d 360, 361 (7th Cir. 2004) (percuriam).) Even in the district court, the government noted Sutton wrongly relied on subsection (c)(2). Su tt on joins that assessment on appeal, as do we. Section 3582(c)(2) applies tothose whose sentencing ranges were reduced “by the Sentencing Commission.” Congress, though, not the SentencingCommission, promulgated the First Step Act and Fair Sentencing Act. See Shaw , 957 F.3d at 743 (“[T]he First Step Act does not include the limitations particular to § 3582(c)(2)”). The parties also agree that § 3582(c)(1)(A) does not apply, leaving only subsection (c)(1)(B ) among the listed exceptionsto the general prohibition on modifying sentences. The government argues that § 3582(c)(1)( B) must, therefore, provide the procedural vehicle under which § 404(b) of the First Step Act operates to permit a modi fi cation to a term of imprisonment. Su tt on o ff ers a more nuanced argument. He contends that the First Step Act is its own procedural vehicle. Though he admits that § 3582(c)(1)(B) is relevant, he objects to the label “vehicle,” since the First Step Act independently authorizes a court to impose a reduced sentence.No. 19-2009 9

Su tt on concedes that the di ff erence between his and the government’s position is mostly semantic. Still, we agree that, to be precise, the First Step Act is its own procedural vehicle. Section 3582(c)(1)(B) does not itself provide a basis for a defendant to move for a sentence reduction. It provides only that “the court may modify an imposed term of imprisonment to the extent otherwise permi tt ed by statute” or Rule 35. It offers no relief and imposes no conditions, limits, or restrictions on the relief permi tt ed by that other statute or the Rule. See United States v. Allen , 956 F.3d 355, 357 (6th Cir. 2020). Critically, and unlike the other two ex ceptions to § 3582(c), subsection (c)(1)(B) does not even refer to who can move for modi fi

cation or how. All that information is contained in the other statute, here § 404(b) of the First Step Act. Just compare those statutes thatwe and the other courts of appeals have previously said “expressly permit[]” modi fi cation of a term of imprisonment . 18 U.S.C. § 3582( c)(1)(B). They include appellate review statue s, 18 U.S.C. § 3742; 28 U.S.C. § 2106, and collateral a tt ack statutes, 28 U.S.C. §§ 2241, 2255. See Bailey, 777 F.3d at 906; Wirsing, 943 F.3d at 184. Section 3582(c)(1)(B) is not the “vehicle” through which a defendant seeks relief when he petitions for a writ of habeas corpus, moves to vacate his sentence, or appeals. The petition, motion, or appeal—and the statute auth orizing each—is the vehicle, and each has its own procedures and limitations unique to it. So, too, with the First Step Act. None of this is to say that § 3582(c)(1)(B) is irrelevant. The government insists if we were to treat the First Step Act as itsown procedural vehicle, then that would amount to an implied repeal of § 3582(c). Implied repeals are disfavored. E.g. , Epic Sys. Corp. v. Lewis , 138 S. Ct. 1612, 1624 (2018). The value10 No. 19-2009

of § 3582(c)(1)(B), though, is precis ely the fact that it allows usto avoid implied repeal. It makes explicit what would otherwise be implicit: the general prohibition against modi fi cation of a term of imprisonment gives way to speci fi c exceptionswithout either repealing the other. In doing so, it does not authorize relief; it just removes a potential obstacle to relief otherwise authorized. See Kelley, 2020 WL 3168518, at *5 (“§ 3582(c)(1)(B) does not ‘implement’ the First Step Act.”). 1 Our distinction is mostly semantic, so we do not split from the Fourth Circuit. True, that court held that “§ 3582(c)(1)(B) is the appropriate vehicle fo r a First Step Act motion.” Wirsing, 943 F.3d at 183. But it said that in the context of rejecting the district court’ s reliance on § 3582(c)(2). Id. at 182– 83. We agree with that conclusionfor the reasons stated above and in Shaw , 957 F.3d at 742–43. We di ff er not on substance, but on the use of the word “veh icle” to describe the substantive e ff ect of § 3582(c)(1)(B). And our quibble with wordchoice comes only from the nuanced positions the parties present here. Given those positions, we might prefer the Second Circuit’s phrasing, that § 3582(c)(1)(B) “provides the correct framework.” Holloway , 956 F.3d at 661

. It is, at most, the road on which the First Step Act vehicle travels. Beyond semantics, there is a conceptual advantage from using the First Step Act as its own vehicle. Doing so clari fi es

1 Su tt ton goes a bit too far when he insists that § 3582(c) is inconsistent with the First Step Act because it authorizes modi fi cations of more thanthe term of imprisonment. The First Step Act may give a district court discretion to modify an entire sentence, but the part of that discretion that includes modifying the term of imprisonment is recognized by § 3582(c). The statutes are consiste nt, even if § 3582(c)(1)(B) does not add anything.No. 19-2009 11

that any limits on relief that th e First Step Act authorizes must come from interpretation of the First Step Act itself. See Kelley, 2020 WL 3168518, at *5; cf. United States v. Chambers , 956 F.3d 667, 671 (4th Cir. 2020) (reaching same result without this framing); Allen , 956 F.3d at 357 (same). The government asks us to hold that the First Step Act must be read in conjunction with § 3582(c)(1)(B). We do notdisagree, but all § 3582(c)(1)(B) says is that a court may modify a term of imprisonment as “expressly permi tt ed by statute.” So, to read the First Step Act in conjunction with § 3582(c)(1)(B) is just to read the First Step Act and assess what it permits. The only consequence the government perceives from deeming § 3582(c)(1)(B) the approp riate vehicle is that a district court would then be allowed to modify a sentence only

“ to the extent

... expressly permi tt ed,” § 3582(c)(1)(B) (emphasis added). In the government’s view, this language demands that a court construe its discretion narrowly. Speci fi cally, because the First Step Act authoriz es a court only to impose a sentence as if the Fair Sentencing Act were in e ff ect, the government asserts that it does no t allow changes to the rest of the sentencing analysis. See United States v. Hegwood, 934 F.3d 414, 418 (5th Cir.) (adopting this rule), cert. denied, 140 S. Ct. 285 (2019); see also Kelley, 2020 WL 3168518, at *4 (same). We express no opinion on wh ether the government’s proposed limitations are appropriate. See Shaw, 957 F.3d at 742– 43 (similarly reserving question). The district court here had not, in any meaningful sense, made fi ndings on sentencing12 No. 19-2009

issues for it to consider revisiting. 2 Regardless of whether the First Step Act o ff ers a district court broad or only narrow discretion, the answer will no t depend on § 3582(c)(1)(B). Indeed, we have found no examples of an appellate court using the language of § 3582(c)(1 )(B) to cabin the districtcourt’s remedial powers under another statute, as the government proposes. There is even some authority to the contrary. S ee United States v. Triestman , 178 F.3d 624, 629 (2d Cir. 1999) (concluding that § 3582(c)(1)(B) do es not limit relief available through habeas corpus petition ). When a court grants collateral relief or remands on appeal, resentencing can be either plenary or limited depending onthe court’s judgment and the other statute. See, e.g. , United States v. Adams , 746 F.3d 734, 743–45 (7th Cir. 2014) (discussing types of remands for resentencing). Section 3582(c)(1)(B) is not part of that calculus.Again, this conclusion does not separate us from the other circuits. The Fifth Circuit’s reas ons for limiting district courts’ discretion had nothing to do with § 3582(c)(1)(B)—which it did not even cite—and everything to do with the text of the First Step Act. Hegwood, 934 F.3d at 418; see also Kelley, 2020 WL 3168518, at *4 (same). Even if one can debate whether the Fifth Circuit’s reading is correct, the answer is in the First Step Act, not § 3582(c).

2 The government rightly notes that the Guidelines require a districtcourt to calculate a sentencing range before accepting a sentencing agreement. U.S.S.G. § 6B1.2(c). That did not happen here, but we must take the record we are given. A First Step Act motion is often “heavily reliant on a previous explanation and record that was ‘not created with the current statutory framework in mind.’” Shaw , 957 F.3d at 741 (quoting Allen , 956 F.3d at 358).No. 19-2009 13

IV. Su tt on’s Motion With the procedural vehicle for Su tt on’s motion identi fi ed, we can address the district court’s ruling on it. A district court has broad discretion in addressing a First Step Act motion. The text of th e statute provides that a court

“ may... impose a reduced sentence.” First Step Act, § 404(b)(emphasis added). The use of “may” is quintessential discretionary language. E.g., Halo Elecs., Inc. v. Pulse Elecs., Inc. , 136 S. Ct. 1923, 1931 (2016). If that were not enough, the Act itself makes clear that “[n]othing in this section shall be construedto require a court to reduce any sentence pursuant to this section.” First Step Act, § 404(c); see also Shaw , 957 F.3d at 743 (“Itis for the district court, in its discretion, to undertake a ‘complete review’ of [a] motion” unde r the First Step Act). It follows from the district court’s broad discretion that we review the denial of a First Step Act mo tion for, at most, an abuse of that discretion.

We see no such abuse here. Su tt on contends, in his pro se brief, that the government brea ched the sentencing agreement by opposing his request to be resentenced to his new minimum. The government, th ough, did not agree to anystatutory minimum; it agreed to the speci fi c 180-month statutory minimum in play at the time. The parties bargained away litigation risks. The government fo rfeited its opportunity to convince the court that its higher recommended sentence was warranted because of Su tt on’s criminal activities, and Su tt on gave up the chance to vindicate himself of those activities. At the time, this was a great deal for Su tt on. Even if he did prove the government’s accusations wrong, he still faced the 180-month minimum to which he had acquiesced. The deal became slightly worse after the First Step Act, as now he had14 No. 19-2009

more to gain (though nearly as much to lose). Still, the court was not obligated to let Su tt on have his cake and eat it, too, keeping his 180-month sentence while maintaining his arguments for why it should be lower. The sentencing agreement also distinguishes this case from the Sixth Circuit’s recent decision in United States v. Boulding, Nos. 19-1590 & 19-1706, 2020 WL 2832110, at *1 (6th Cir. June 1, 2020). There, the Sixt h Circuit found an abuse of discretion in a super fi cially similar situation: a Guidelines dispute abandoned at the initial se ntencing but resolved in the government ʹ s favor on a First Step Act motion. Id. at *1–2. In Boulding’s case, though, his statutory minimum was life imprisonment, so he could make only “frivolous objections to sentencing enhancements.” Id. at *2. Su tt on’s objections were never frivolous, since the alternative was a longer sentence that might well have remained appropriate to this day. Even if Su tt on did not “withdraw” his objections, he chose to leave the dispute unresolved in exch ange for the certainty of a 180- month sentence. The district cour t did not abuse its discretion leaving him to that choice.
V. Conclusion We conclude that the proper vehicle for Su tt on’s motion for a reduced sentence is § 404(b) of the First Step Act. Regardless of the vehicle, however, th e district court did not abuse its discretion in denying Su tt on’s motion. Accordingly, we A FFIRM the judgment.