United States of America v. Antonio Soul Gonzalez

Atlanta, Georgia - Criminal defense lawyer represented defendant with

a possessing 50 grams or more of cocaine base (i.e., crack cocaine) with intent to distribute charge. He now appeals the denial of his motion for a sentence reduction.

Pursuant to a plea agreement, Mr. Gonzalez pled guilty in 2005 to possessing

50 grams or more of cocaine base (i.e., crack cocaine) with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). The district court sentenced

him to 240 months in prison and 120 months of supervised release.

In 2014, the district court reduced Mr. Gonzalez's term of imprisonment to

151 months pursuant to the government's substantial assistance motion. In 2015,

the district court reduced Mr. Gonzalez's term of imprisonment to 76 months under

18 U.S.C. § 3582(c)(2).

Mr. Gonzalez began his term of supervised release in 2015. When he tested

positive for cocaine and marijuana, provided false information to probation, and

failed to obtain employment, his probation officer filed a petition for revocation of

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supervised release, and the district court issued a warrant for his arrest. The

probation officer later filed a superseding petition adding new alleged criminal

conduct: (1) possession of 500 grams or more of cocaine with intent to distribute;

(2) possession of 28 grams or more of cocaine base; and (3) possession of a firearm

in furtherance of a drug trafficking crime. Mr. Gonzalez admitted to nine violations,

and the district court revoked his supervised release and sentenced him to 57 months

in prison, to be served consecutively to a separate sentence imposed for the new

criminal conduct.

In April of 2019, Mr. Gonzalez, proceeding pro se, sought to modify his 57-

month sentence under § 404(b) of the First Step Act. He argued that his original

narcotics conviction was now classified as a Class B felony instead of a Class A

felony, and as a result his maximum prison term for a violation of supervised release

was three years rather than five. The government opposed a reduction under the

First Step Act. It argued that Mr. Gonzalez's current sentence was for revocation of

supervised release under 18 U.S.C. § 3583(e)(3), and not for a covered offense under

the First Step Act. It also alternatively asserted that, even if Mr. Gonzalez were

eligible, the district court should not reduce his sentence because his new criminal

conduct and his prison disciplinary record (which included 18 violations, some

involving drugs) demonstrated "a continued disrespect for authority” and "raise[d]

legitimate concerns about recidivism.”

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The district court denied Mr. Gonzalez's motion on alternative grounds. First,

the district court concluded that Mr. Gonzalez was ineligible under the First Step

Act because his current sentence was for a violation of supervised release, and not

for a covered offense. Second, even if Mr. Gonzalez were eligible, the district court

expressly adopted the government's alternative arguments. It explained that it would

not reduce his sentence due to his "unwillingness or inability to abide by the law”

and his "continued lawless behavior,” including the recent drug and firearm

offenses. Mr. Gonzalez's appeal followed.

II

Mr. Gonzalez argues that his current sentence, imposed upon revocation of

supervised release, makes him eligible for a reduction under § 404(b) of the First

Step Act. He asserts that the revocation of supervised release relates back to the

initial offense for which he was imprisoned, and thus that initial offense should be

the focus of the eligibility determination under the First Step Act. Because the Fair

Sentencing Act of 2010, Pub. L. No. 111-20, §§ 2-3, 124 Stat. 2372, reclassified his

initial narcotics offense from a Class A to a Class B felony, he contends that his

supervised release revocation allows him to obtain a reduction under the First Step

Act.

We exercise plenary review in determining whether a district court has

authority to reduce a sentence under the First Step Act. See United States v. Russell,

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994 F.3d 1230, 1236 (11th Cir. 2021); United States v. Jones, 962 F.3d 1290, 1296

(11th Cir. 2020). On appeal, the government has changed its position on the matter

of eligibility. It now concedes that Mr. Gonzalez's revocation sentence is eligible

for a reduction under the First Step Act because the underlying offense was a covered

offense under § 404(b). We are "not bound to accept” a party's concession on a

"question of law,” but based upon our independent analysis we think the

government's U-turn on eligibility is "well advised.” Orloff v. Willoughby, 345 U.S.

83, 87 (1953).

For a defendant to be eligible for a sentence reduction under the First Step

Act, "the district court must have imposed a sentence . . . for a covered offense.”

Jones, 962 F.3d at 1298 (internal quotation marks omitted). The First Step Act

defines a covered offense 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 . . .

that was committed before August 3, 2010.” First Step Act, § 404(a). See generally

Terry v. United States, 141 S. Ct. 1858, 1862–63 (2021) (explaining eligibility under

the First Step Act). There is no dispute that Mr. Gonzalez's underlying narcotics

crime, which involved the possession of crack cocaine, is a covered offense under

the Act. The remaining question, then, is whether a sentence imposed upon the

revocation of supervised release qualifies for a sentence reduction under § 404(b) of

the Act when the underlying crime is a covered offense.

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The Supreme Court has explained that "post[-]revocation penalties relate to

the original offense.” Johnson v. United States, 529 U.S. 694, 701 (2000). See also

United States v. Haymond, 139 S. Ct. 2369, 2379–80 (2019) (plurality opinion) ("an

accused's final sentence includes any supervised release sentence he may receive”).

We have similarly stated that as a "general principle . . . post-revocation penalties

are contemplated in relation to the original offense.” United States v. Williams, 790

F.3d 1240, 1251 (11th Cir. 2015).1



Because a "period of supervised release is simply a part of the sentence for

the underlying conviction,” id., we join the Fourth and Sixth Circuits in holding that

a sentence imposed upon revocation of supervised release is eligible for a sentence

reduction under § 404(b) of the First Step Act when the underlying crime is a covered

offense within the meaning of the Act. See United States v. Woods, 949 F.3d 934,

937 (6th Cir. 2020) ("Given that Woods' current 37-month sentence relates to his

original offense under 21 U.S.C. § 841(a)(1)—a First Step Act 'covered offense'—

Woods is eligible for resentencing[.]”); United States v. Venable, 943 F.3d 187, 194

(4th Cir. 2019) ("[G]iven that Venable's revocation sentence is part of the penalty

for his initial offense, he is still serving his sentence for a 'covered offense' for

1 Our sister circuits are in agreement. See, e.g., United States v. Salazar, 987 F.3d 1248, 1256–57

(10th Cir. 2021); United States v. Reyes-Santiago, 804 F.3d 453, 477 (1st Cir. 2015); United States

v. Turlington, 696 F.3d 425, 427 (3d Cir. 2012); United States v. Johnson, 640 F.3d 195, 203 (6th

Cir. 2010).

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purposes of the First Step Act. Thus, the district court had the authority to consider

his motion for a sentence reduction just as if he were serving the original custodial

sentence.”). So Mr. Gonzalez is eligible for a sentence reduction under the First Step

Act.

III

Eligibility, of course, is not the end of the matter. As its statutory text

indicates, and as we have explained, § 404(b) of the First Step Act authorizes district

courts to reduce the sentences of defendants with covered offenses but does not

require them to do so. See United States v. Taylor, 982 F.3d 1295, 1298 (11th Cir.

2020); Jones, 962 F.3d at 1304. That means we review for abuse of discretion a

district court's decision as to whether to reduce a sentence for an eligible defendant.

See Jones, 962 F.3d at 1296. And that standard generally provides a district court

with a "range of choice” as long as the choice does not constitute a "clear error of

judgment.” United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en

banc). See also Koon v. United States, 518 U.S. 81, 100 (1996) ("A district court by

definition abuses its discretion when it makes a mistake of law.”).

A

A district court must adequately explain its decision under the First Step Act,

and that usually requires providing a reasoned basis for the exercise of discretion.

See United States v. Stevens, 997 F.3d 1307, 1317 (11th Cir. 2021). In exercising

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its discretion, a district court may consider the sentencing factors set forth in 18

U.S.C. §3553(a), but it is not required to do so. See id. at 1316; United States v.

Potts, 997 F.3d 1142, 1145–46 (11th Cir. 2021). And as long as it is not ambiguous,

a district court's alternative exercise of discretion in denying a First Step Act motion

can suffice for affirmance. See Potts, 997 F.3d at 1147. As explained below, we

conclude that the district court here did not abuse its discretion in denying Mr.

Gonzalez's First Step Act motion.

The district court stated that Mr. Gonzalez was ineligible for a reduction under

the First Step Act, but alternatively assumed his eligibility and denied a sentence

reduction in the exercise of its discretion. The district court based its denial on Mr.

Gonzalez's "unwillingness or inability to abide by the law” and his "continued

lawless behavior”—as demonstrated by his prison disciplinary record and most

recent drug and firearm offenses—and a concern about recidivism.

Although the district court did not refer to the § 3553(a) factors by name, its

reasons touched on two of them—the need to "afford adequate deterrence” and the

need to "protect the public from further crimes of the defendant.” See §

3553(a)(2)(B)–(C). Where, as here, a defendant has engaged in criminal conduct

while on supervised release, recidivism and deterrence are appropriate

considerations in deciding whether to reduce a sentence under the First Step Act.

The district court's reasons were clear, supported by the record, and did not

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constitute an abuse of discretion. See Woods, 949 F.3d at 938 (affirming denial of a

First Step Act motion for reduction of a revocation sentence because the defendant's

crimes while on supervised release, pattern of drug involvement, and possession of

weapons indicated that the original sentence was not sufficient to promote respect

for the law, protect the public, or afford adequate deterrence). Cf. Potts, 997 F.3d at

1146–47 (affirming district court's alternative denial of First Step Act motion, after

consideration of the § 3553(a) factors, given the defendant's extensive criminal

history and the seriousness of the offenses).

B

In a supplemental filing, Mr. Gonzalez urges us to follow the Seventh

Circuit's decision in United States v. Corner, 967 F.3d 662, 666 (7th Cir. 2020), and

hold that district courts must always calculate and consider a defendant's new range

under the Sentencing Guidelines before exercising their discretion under § 404(b) of

the First Step Act. The Seventh Circuit relied on language in § 404(c) of the Act

stating that a defendant cannot file a second motion for reduction if the first motion

was "denied after a complete review of the motion on the merits.” Id. at 665. In its

view, the failure to properly calculate the new range results in an uninformed

exercise of discretion and "amounts to a reversible procedural error.” Id.

In some instances, it may be that the better practice is for a district court to

calculate the new sentencing range before deciding whether to grant or deny a First

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Step Act motion. In other instances, perhaps not. Cf. Pearson v. Callahan, 555 U.S.

223, 236–37 (2009) (discouraging "[s]ubstantial expenditure[s] of scarce judicial

resources on difficult questions that have no effect on the outcome of the case”). In

any event, we decline to follow Corner by fashioning a hard-and-fast rule of

automatic reversal.

First, the Seventh Circuit's analysis of the text of the First Step Act is incorrect

and takes the "complete review” language—which it called a "requirement”—out of

context. The "complete review” mentioned in § 404(c) of the Act only relates to a

court's ability to consider successive First Step Act motions: "No court shall

entertain a motion made under this section to reduce a sentence if . . . a previous

motion made under this section to reduce the sentence was, after the date of

enactment of this Act, denied after a complete review of the motion on the merits.”

As we have suggested, this "complete review” language is relevant only with respect

to successive motions. See United States v. Denson, 963 F.3d 1080, 1087 (11th Cir.

2020). Indeed, the language appears nowhere else in the Act.2



2 To the extent the Fourth and Sixth Circuits have issued decisions based on the same reading of §

404(c), we respectfully disagree with them as well. See United States v. Collington, 995 F.3d 347,

359 (4th Cir. 2021) (asserting that "[§] 404(c) of the First Step Act requires district courts to

undertake 'a complete review of the motion on the merits'”) (quoting First Step Act, § 404(c));

United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020) ("Though coming from the provision

that governs repeat resentencing motions, this language shows the dimensions of the resentencing

inquiry Congress intended district courts to conduct: complete review of the resentencing motion

on the merits.”).

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Second, Rule 52(a) of the Federal Rules of Criminal Procedure instructs that

"[a]ny error, defect, irregularity, or variance that does not affect substantial rights

must be disregarded,” and the Supreme Court has held that "a federal court may not

invoke supervisory power to circumvent the harmless-error inquiry prescribed by . .

. Rule 52(a).” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1987). We

have held, therefore, that a "Sentencing Guidelines miscalculation is harmless if the

district court would have imposed the same sentence without the error.” United

States v. Barner, 572 F.3d 1239, 1248 (11th Cir. 2009) (also explaining that "where

the district [court] chooses to sentence within the range prescribed by the Sentencing

Guidelines, an error in their calculation cannot be harmless”). An automatic reversal

rule would be in tension, if not in conflict, with Rule 52(a) and our precedent. We

are confident that we can decide, on a case-by-case basis, whether a district court's

failure to properly calculate the new range constitutes reversible procedural error

under the First Step Act

We affirm the district court’s denial of Mr. Gonzalez’s motion under § 404(b)

of the First Step Act.



AFFIRMED