19-3071-cr
United States v. Thomas


                                  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 NOTATION
"SUMMARY ORDER"). A PARTY CITING 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, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 15th day of September, two thousand twenty.

PRESENT:             RALPH K. WINTER,
                     REENA RAGGI,
                     DENNY CHIN,
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
                    Appellee,

                              -v-                                                  19-3071-cr

GREGORY THOMAS, AKA Little Earl, E-Z,
                  Defendant-Appellant,

BILLY J. APPLINS, AKA Gee, AKA Billy Pringle,
JAMES KELLY, AKA Boom, NATHAN SPEIGHTS,
AKA The Mole, DENNIS JONES, AKA Denny Man,
AKA Crazy D, AKA JJ, ISMAIL PIERCE, AKA Bird,
AKA Rocket, AKA Holiday, AKA Styles,
AKA Streets, JERRAWN THOMAS, AKA Piper,
AKA Jerrod, RONNIE PARNELL, AKA Slick,
JOSEPH DERBY, AKA Bird, AKA Dirt,
WILLIAM ROBINSON, AKA Gugu, AKA Googs,
AKA Google, CHARMISH SINGLETARY,
AKA Meechie, AKA Sly, LONNIE SINGLETARY,
AKA LA, GREGORY GRIFFIN, AKA Meeshack,
ANDRE APPLINS, AKA AJ, TYLER WILLIS,
AKA Trouble T, SKYLER WILLIS, AKA SKY,
                       Defendants. ∗

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FOR APPELLEE:                                                          Steven D. Clymer, Assistant United
                                                                       States Attorney, for Antoinette T. Bacon,
                                                                       United States Attorney for the Northern
                                                                       District of New York, Syracuse, New
                                                                       York.

FOR DEFENDANT-APPELLANT:                                               Molly K. Corbett, Assistant Federal
                                                                       Public Defender, for Lisa A. Peebles,
                                                                       Federal Public Defender, Albany, New
                                                                       York.

                    Appeal from the United States District Court for the Northern District of

New York (Norman A. Mordue, J.).

                    UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

                    Defendant-appellant Gregory Thomas appeals from the memorandum

decision and order of the district court entered September 10, 2019, denying his motion

for a reduction of his sentence pursuant to § 404(b) of the First Step Act. See Pub. L. No.


∗
        The Clerk of the Court is respectfully requested to amend the official caption of this
action to conform to the caption listed above.


                                                                -2-
115-391, 132 Stat. 5194, 5222 (2018) (codified at 21 U.S.C. § 841(b)). On appeal, Thomas

argues that the district court (i) erred when it determined that he was not eligible for a

reduced sentence under the First Step Act and (ii) abused its discretion when it decided

not to exercise its discretion to reduce his sentence. We assume the parties' familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

              In 2006, Thomas was charged with racketeering conspiracy based on his

participation in Elk Block, a gang whose activities included murder, attempted murder,

assault, the use of firearms, and drug trafficking. A jury found, inter alia, that, as part of

his racketeering activity, Thomas conspired to distribute and/or possess with intent to

distribute 50 grams or more of crack cocaine. The district court initially sentenced

Thomas principally to 360 months' imprisonment.

              Thomas appealed, and in 2011, in light of Kimbrough v. United States, 

(2007), this Court remanded for resentencing. See United States v. Applins, 

, 83-84 (2d Cir 2011). On remand, the district court resentenced Thomas to 292

months' imprisonment. In 2017 Thomas moved pro se for a sentencing reduction under

Amendments 706, 750, and 782 to the United States Sentencing Guidelines and 18 U.S.C.

§ 3582(c)(2). The district court granted Thomas's motion on March 30, 2018, and

reduced his sentence to 235 months' imprisonment.

              On February 22, 2019, Thomas moved pro se to reduce his sentence further

pursuant to the First Step Act, with appointed counsel filing a supplemental


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memorandum in support on July 10, 2019. Thomas argued that, because a predicate for

his racketeering crime was conspiracy to traffic in 50 or more grams of cocaine base, the

penalties for his racketeering conviction were tied to 21 U.S.C. § 841, and thus his crime

was a covered offense eligible for a sentence reduction under the First Step Act.

Thomas further argued that his educational achievements during incarceration and

seven years without any disciplinary infractions supported a sentence reduction.

             In its September 10, 2019 decision, after expressing doubt as to whether

Thomas's RICO conviction was a covered offense, the district court concluded that it

"need not resolve" the question because it "ha[d] already resentenced [Thomas] and

given full effect to Guideline Amendments 782 and 788," and Thomas therefore had

already received a sentence reduction under the Fair Sentencing Act. App'x at 211

(emphasis omitted). Nonetheless, the district court proceeded to consider whether to

grant Thomas a further reduction as a discretionary matter, concluding as follows:

             Finally, Defendant argues that "the Court should exercise its
             discretion to impose a reduced sentence." (Dkt. No. 1176-1,
             pp. 7-9). Defendant explains that he "has applied himself to
             both his education and ability to support himself once he
             leaves BOP Custody." (Id., p. 9). In a letter to the Court,
             Defendant states that he received his GED in 2013, and has
             stayed out of trouble for seven years. (Dkt. No. 1185).
             Defendant's efforts are commendable, and he is encouraged
             to continue to improve himself. But after careful review of
             the circumstances of his conviction and the evidence
             presented at trial, the Court finds that Defendant's sentence
             of 235 months remains appropriate under 18 U.S.C. § 1963(a)
             and 18 U.S.C. § 3553(a).


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                In sum, Defendant is not entitled to relief under the First
                Step Act because he has already received the sentencing
                benefits provided therein. Further, the Court declines to
                exercise its discretionary authority to reduce Defendant's
                sentence on any other basis.

App'x at 211.

                This appeal followed.

                                        DISCUSSION

                We review the denial of a motion for a discretionary sentence reduction

for abuse of discretion. See United States v. Holloway, 

, 664 (2d Cir. 2020).

The First Step Act provides a statutory basis for a sentence reduction for "covered

offense[s]," defined as "violation[s] of a Federal criminal statute, the statutory penalties

for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010." Pub. L.

No. 115-391, § 404(a), 132 Stat. at 5222. As relevant to Thomas, Section 2 of the Fair

Sentencing Act increased the threshold quantity for conviction under § 841(b)(1)(A)

from 50 to 280 grams of crack cocaine under § 841(b)(1). See Pub. L. No. 111-220, § 2(a),

124 Stat. 2372, 2372 (2010).

                Although the First Step Act permits resentencing, it limits its application

in two ways: it prohibits courts from hearing motions (1) if the sentence at issue was

"previously imposed or previously reduced in accordance with" the Fair Sentencing Act

or (2) if a previous motion made under the First Step Act was denied "after a complete

review of the motion on the merits." Pub. L. No. 115-391, § 404(c), 132 Stat. at 5222.


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Courts evaluating motions for sentence reductions under the First Step Act first

determine whether the defendant is eligible for relief and second, if eligible, evaluate

whether he is entitled to relief. See 

(noting that although a

defendant "is plainly eligible for relief, he is not necessarily entitled to relief"). In

evaluating whether a defendant is entitled to relief, courts may consider the relevant

§ 3553(a) factors. See 18 U.S.C. § 3553(a); United States v. Rose, 

, 234-

35 (S.D.N.Y. 2019). The second-step decision to reduce a defendant's sentence under the

First Step Act is entirely discretionary. See Pub. L. No. 115-391, § 404(c), 132 Stat. at 5222

("Nothing in this section shall be construed to require a court to reduce any sentence

pursuant to this section."); United States v. Johnson, 

, 185 (2d Cir. 2020).

               Here, the district court assumed that Thomas was eligible for resentencing

under the First Step Act but concluded that he had already received the benefits of the

Fair Sentencing Act. Nonetheless, it moved to the second step in the analysis,

evaluating whether Thomas was entitled to a sentence reduction as a discretionary

matter "on any other basis," App’x at 211, and concluding that he was not. See 

.

               On this record, we need not decide whether Thomas was convicted of a

"covered offense" or whether the district court erred in concluding that he had already

received the benefits of the First Step Act. Even if we were to resolve that issue in

Thomas’s favor, see 

, the district court made clear that it would


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not exercise its discretion to reduce Thomas's sentence further in any event. See United

States v. Pristell, 

, 49 (2d Cir. 2019). We identify no abuse of discretion in this

decision. Weighing the relevant § 3553(a) factors, the district court acknowledged that

Thomas's educational attainments and disciplinary record were "commendable" but

nevertheless concluded that, in light of "the circumstances of his conviction and the

evidence presented at trial . . . [his] sentence . . . remains appropriate" and so "decline[d]

to exercise its discretionary authority" to reduce his sentence. App'x at 211; see 

. The district court's reasoning neither depended on a "clearly

erroneous factual finding" nor constituted a decision that could "not be located within

the range of permissible decisions." United States v. Borden, 

, 104 (2d Cir.

2009).

                                            * * *

              We have considered Thomas's remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the order of the district

court.

                                           FOR THE COURT:
                                           Catherine O'Hagan Wolfe, Clerk




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