20

- 4112 United States v. Campbell



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 9 t h d ay of D e c e m b e r , two thousand twenty

- one. 3 4 PRESENT: 5 BARRINGTON D. PARKER, 6 SUSAN L. CARNEY, 7 RICHARD J. SULLIVAN, 8 Circuit Judges. 9

_____________________________________ 10 11 United States of America, 12 13 Appellee , 14 15

v. 20

- 4112 16 17 Calvin Campbell, AKA Cat, 18 19 Defendant

- Appellant

. 20

_____________________________________ 21 22 23 FOR APPELLEE: Tiffany H. Lee, Assistant United States 24 Attorney, for James P. Kennedy, Jr., United 25 States Attorney for the Western District of 26 New York, Buffalo, NY

. 27 28 FOR DEFENDANT

- APPELLANT: MaryBeth Covert, Federal Public 29 Defender’s Office, Buffalo, NY. 30 31 322 Appeal from an order of the United States District Court for the Western District of New 1
York (Wolford, J. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the order of the district court is AFFIRM ED

. 4
In 2007, Appellant Calvin Campbell pleaded guilty to distribution of 5 grams or more of 5
cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). Because the g overnment had 6
filed an information asserting that Campbell had a prior felony drug conviction, he was subject to 7
enhanced statutory penalties under 21 U.S.C. § 851. In 2008, the district court sentenced Campbell 8
to a term of 90 months’ imprisonment followe d by an 8

- year period of supervised release. Campbell 9
was released from custody in 2013 but his supervised release was revoked and he was reincarcerated 10

after he violated a condition of his release . In 2016, Campbell was released from custody for that 11

viol ation . In 2018, officers found controlled substances packaged for sale in Campbell’s vehicle 12
during a traffic stop, and in related proceedings, the district court found that Campbell had 13
committed multiple violations of his conditions of supervised release . The district court then 14
sentenced Campbell to 54 months’ imprisonment to be followed by a 5

- year period of supervised 15

release. 16
In 2019, Campbell, proceeding pro se, appealed that judgment, and later filed a motion to 17
reduce his sentence pursuant to sect ion 404 of the First Step Act of 2018. See Pub. L. No. 115

- 391, 18
§ 404, 132 Stat. 5194 (2018). In 2020, the district court issued an order deferring consideration of 19
the motion until this Court remanded the case. Campbell withdrew his appeal, the case was 20

r emanded, and Campbell, through counsel, filed a supplemental motion for a sentence reduction. 213 The government did not dispute that Campbell was eligible for a sentence reduction, explaining 1
that “its current position was that a supervised release violation sentence was subject to the First 2
Step Act,” Appellee’s Br. at 6

- 7

. Rather, it argued that the district court should not exercise its 3
discretion to grant the motion. The district court then denied Campbell’s motion. It assumed that 4
Campbell was eligible fo r a sentence reduction, but then concluded that the 54

- month sentence and 5

5

- year term of supervised release remained necessary and appropriate. See United States v. 6
Campbell , 502 F. Supp. 3d 752, 756, 760 (W.D.N.Y. 2020). 7
Campbell now appeals the district court’s denial of his First Step Act motion. Such motions 8
are governed by 18 U.S.C. § 3582(c)(1)(B). See United States v. Holloway , 956 F.3d 660, 666 (2d 9
Cir. 2020). We review for abuse of discretion a district court’s denial of motion for a sentence 10

redu ction under the First Step Act. See United States v. Moyhernandez , 5 F.4th 195, 205 (2d Cir. 11
2021). We assume the parties’ familiarity with the underlying facts, the procedural history of the 12
case, and the issues on appeal, to which we refer only as needed to explain our decision to affirm. 13
Section 841(b) of U.S. Code title 21 establishes penalties for criminal distribution of 14
controlled substances based on the type and amount of the substance involved in the offense. In 15

2007, a defendant convicted of di stribution of 5 or more grams of cocaine base who had been 16
previously convicted of a drug felony was subject to a mandatory minimum sentence of 10 years’ 17
imprisonment and a maximum sentence of life. See 21 U.S.C. § 841(b)(1)(B)(iii) (2007). In 2010, 18

Congre ss passed the Fair Sentencing Act, which increased from 5 grams to 28 grams the amount of 19
cocaine base required for a crime to qualify for the same sentencing range, thus reducing the 20
penalties applicable to certain drug crimes. See Pub. L. No. 111

- 220, § 2, 124 Stat. 2372 (2010). 21
Accordingly, had Campbell been sentenced after the effective date of the Fair Sentencing Act, his 224 original offense would not have carried a maximum sentence of life. As a result, his original offense 1
would not be categorized as a Class A felony, see 18 U.S.C. § 3559(a)(1), and the statutory 2
maximum sentence and Guideline range for a violation of the terms of supervised release on that 3

offense would likewise be reduced, see 18 U.S.C. § 3583(e)(3); U.S.S.G. 7B1.4(a)(2). 4

The Fair S entencing Act did not by its terms apply to sentences imposed before its effective 5

date. See Dorsey v. United States , 567 U.S. 260, 281 (2012). In 2018, however, Congress passed 6
the First Step Act, which made the Fair Sentencing Act retroactive insofar as it gave district courts 7
discretion to reduce the sentences of defendants convicted of violating statutes whose penalties 8
were modified by sections 2 and 3 of the Fair Sentencing Act. The First Step Act provides expressly, 9
however, that “[n]othing in this s ection shall be construed to require a court to reduce any sentence 10
pursuant to this section.” First Step Act § 404(c) , 132 Stat. at 5222

. 11
The parties appear to assume Campbell’s eligibility for a sentence reduction under the First 12
Step Act, as did the district court. On appeal Campbell contends primarily that the district court 13
abused its discretion in denying his motion. According to Campbe ll, the district court placed undue 14
weight on his criminal history and failed to adequately consider the sentencing disparity between 15
Campbell and defendants sentenced after the Fair Sentencing Act took effect. Campbell also asserts 16

that the district court abused its discretion in failing to consider granting him a more limited 17

reduction of his sentence. 18

On review, we conclude that the district court did not abuse its discretion under the First 19
Step Act. The court evaluated the sentencing factors laid out in 18 U.S.C. § 3553(a), which

— 20
although not mandatory considerations

— “remain sound guiding principles” in the exercise of 215 discretion. Moyhernandez , 5 F.4th at 205. 1 As the district court recognized, had Campbell been 1
sentenced for his underlying offens e after the Fair Sentencing Act’s modifications became effective, 2
he could be sentenced to a maximum of three years for his supervised release violation, rather than 3
a maximum of five years. See 18 U.S.C. § 3583(e)(3). But it was not an abuse of discretion for the 4
district court to place considerable weight on Campbell’s history of violating conditions of 5
supervised release and controlled substance offenses in determining whether a reduced sentence 6
would afford adequate deterrence to Campbell and protect th e public from future offenses. And the 7

court did not “consider[] these factors to the exclusion of others,” which would have been error. 8

United States v. Smith , 982 F.3d 106, 111 (2d Cir. 2020). The court recognized that Campbell’s 9
lack of disciplinary his tory in custody, his family circumstances, and the COVID

- 19 pandemic, 10
alongside the sentencing disparity, weighed in favor of a reduction, but ultimately concluded that 11
these factors did not render the existing sentence inappropriate. Based on the district court’s 12
description of Campbell’s criminal history, we find that “[this] factor, as explained by the district 13
court, can bear the weight assigned it under the totality of circumstances in the case.” United States 14

v. Cavera , 550 F.3d 180, 191 (2d Cir. 2008 ). 15
As to Campbell’s argument that the district court failed to consider whether a lesser sentence 16
reduction would be appropriate, this assertion is not supported by the record. The district court did 17
not merely determine that the requested reduction was u nwarranted, but affirmatively concluded 18

“that the 54

- month prison sentence to be followed by a five

- year period of supervised release is 19
appropriate under the circumstances.” Campbell , 502 F. Supp. 3d at 760. We accordingly cannot 20

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.6 conclude that the distric t court’s determination that a 54

- month sentence remained appropriate fell 1
“outside the range of permissible decisions.” Moyhernandez , 5 F.4th at 205. 2
We have reviewed Campbell’s remaining arguments and find in them no basis for reversal. 3
For the foregoin g reasons, the order of the district court is AFFIRMED

. 4

FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court 6