Recharacterization Without Notice Violates Due Process; Murder Cross‑Reference Does Not Defeat First Step Act Eligibility

Introduction

This commentary analyzes the Eleventh Circuit’s unpublished, per curiam decision in United States v. Leonard Brown, No. 24-12060 (11th Cir. Oct. 30, 2025). The case addresses two recurring issues in First Step Act litigation involving pro se defendants: (1) the due process limits on a district court’s recharacterization of a pro se request for counsel as a substantive motion for sentence reduction; and (2) the proper eligibility analysis under § 404 of the First Step Act when the defendant’s guideline range is driven by the Sentencing Guidelines’ murder cross‑reference.

The government and the defendant, Leonard Brown (a.k.a. “Bo”), agreed on appeal that Brown is eligible to seek a reduction because he was convicted of “covered offenses” under 21 U.S.C. § 841(b) that were modified by the Fair Sentencing Act. Nonetheless, the district court had denied relief after construing Brown’s 2019 letter seeking appointment of counsel as a First Step Act motion, and then finding him “ineligible” due to the Guidelines’ murder cross‑reference that left his advisory range at life. The Eleventh Circuit vacated and remanded, directing the district court to allow full briefing on Brown’s construed sentence‑reduction motion and to reconsider eligibility and discretionary reduction in light of the correct legal standards. A requested reassignment to a different judge was denied.

Summary of the Opinion

Due Process Error: The district court erred by recharacterizing Brown’s pro se letter requesting counsel as a First Step Act motion and then denying it without giving Brown notice and an opportunity to present arguments. The complete denial of the opportunity to be heard on material issues is a due process violation that is never harmless.
Eligibility Error: The district court also erred by deeming Brown “ineligible” for a sentence reduction. Eligibility under § 404(b) turns on whether the offense of conviction is a “covered offense” (i.e., one for which the statutory penalties were modified by §§ 2 or 3 of the Fair Sentencing Act), not on whether the defendant’s advisory guideline range would change (for example, because of the murder cross‑reference).
Remand Instructions: The panel vacated the orders and remanded for the district court to allow Brown to brief his construed motion, allow a government response, and then adjudicate the motion on the merits. The court expressed no view on whether a reduction should be granted.
No Reassignment: The extraordinary remedy of reassigning the case to a different district judge on remand was unwarranted.

Case Background

In 1999, Brown and co‑defendants were indicted in the Southern District of Florida for multiple drug and firearm conspiracies. A 2000 jury convicted him of:

Count 2: Conspiracy to possess and distribute more than 5 kilograms of cocaine and more than 50 grams of crack cocaine, under 21 U.S.C. § 841(a)(1);
Count 3: Conspiracy to import more than 5 kilograms of cocaine, under 21 U.S.C. §§ 952(a), 963;
Count 9: Distribution of more than 500 grams of cocaine and more than 50 grams of crack cocaine, under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and
Count 16: Conspiracy to use and possess a firearm related to drug trafficking, under 21 U.S.C. § 846 and 18 U.S.C. § 924(o).

The presentence investigation report grouped the counts and applied the U.S.S.G. § 2D1.1(d)(1) murder cross‑reference to § 2A1.1 (first‑degree murder), producing a total offense level of 43 and a Guidelines sentence of life. The court imposed concurrent life sentences on Counts 2, 3, and 9 and 240 months on Count 16. Brown’s convictions and sentences were affirmed.

In 2019, Brown sent a short pro se letter asking how appointment of counsel works for Fair Sentencing Act issues, stating he had been “charged with 50 grams of crack and qualify.” The district court sua sponte construed the letter as a First Step Act motion and—without giving Brown a chance to brief—denied it as “ineligible,” reasoning that the murder cross‑reference would still set his Guidelines range at life “even if” the base offense level were otherwise reduced. It denied appointment of counsel as moot.

Brown moved for reconsideration, asking the court to treat his filing as his first, properly briefed motion. He argued he was eligible because he had “covered offenses,” and that the court should then weigh the 18 U.S.C. § 3553(a) factors. In 2024, the district court denied reconsideration, again citing the murder cross‑reference. Brown appealed.

Analysis

Precedents Cited and Their Influence

Tannenbaum v. United States, 148 F.3d 1262 (11th Cir. 1998): Establishes that courts liberally construe pro se filings. This principle permits a court to look beyond labels to the substance of a filing.
Castro v. United States, 540 U.S. 375 (2003): Authorizes recharacterization of pro se filings to align with their substance, but warns against recharacterizations that may harm the litigant. Here, the warning is apposite: recharacterizing a counsel-request letter as a merits motion risked adverse consequences without giving Brown a fair chance to be heard.
United States v. Smith, 30 F.4th 1334 (11th Cir. 2022): Squarely controls the due process analysis. Smith held that a district court must give fair notice and an opportunity to be heard before denying a construed First Step Act motion—precisely what the district court failed to do here. Smith also emphasized that denial of the opportunity to be heard on material issues is never harmless.
United States v. Russell, 994 F.3d 1230 (11th Cir. 2021): Supplies the eligibility framework for § 404(b): an offense is “covered” if its statutory penalties were modified by §§ 2 or 3 of the Fair Sentencing Act and the offense was committed before August 3, 2010. Russell also cautioned (in a concurrence cited by the panel) against recharacterizing counsel‑request letters as substantive motions.
United States v. Edwards, 997 F.3d 1115 (11th Cir. 2021): Confirms that § 404(b) independently vests district courts with authority to reduce sentences where criteria are met, underscoring that authority existed here once eligibility is recognized.
Dorsey v. United States, 567 U.S. 260 (2012), and Terry v. United States, 593 U.S. 486 (2021): Provide background on the Fair Sentencing Act, including what statutory penalties were modified and how that affects coverage under later retroactivity legislation.
United States v. Puentes, 803 F.3d 597 (11th Cir. 2015), and 18 U.S.C. § 3582(c)(1)(B): Establish that sentence modification requires statutory or rule-based authorization, which the First Step Act provides for covered offenses.
United States v. Jackson, 58 F.4th 1331 (11th Cir. 2023) and United States v. Llewlyn, 879 F.3d 1291 (11th Cir. 2018): Supply standards of review (de novo for authority; abuse of discretion for denial of eligible § 404(b) relief and for reconsideration).
United States v. Gupta, 572 F.3d 878 (11th Cir. 2009), and United States v. Torkington, 874 F.2d 1441 (11th Cir. 1989): Identify the stringent factors for reassignment on remand, which were not met.

Legal Reasoning

Improper Recharacterization and Denial Without Process: Brown’s letter did not request a sentence reduction or advance arguments; it asked how to obtain counsel. Even if a court could recharacterize such a letter, it must provide notice and an opportunity to present arguments before denying relief. Citing Smith, the panel held that the district court’s immediate denial—without allowing briefing—violated due process by completely denying Brown the chance to be heard on material issues.
Eligibility Under the First Step Act Is Offense-Based, Not Guidelines-Based: The panel emphasized that § 404 eligibility hinges on the offense of conviction—specifically, whether the statutory penalties were modified by §§ 2 or 3 of the Fair Sentencing Act. Brown’s crack cocaine convictions in Counts 2 and 9 triggered § 841(b)(1)(A) penalties, which the Fair Sentencing Act later modified by raising the crack thresholds (e.g., from 50 grams to 280 grams for § 841(b)(1)(A)). As a result, those counts are “covered offenses.” The district court’s contrary “ineligibility” conclusion—because the murder cross‑reference would leave the advisory range unchanged—erroneously conflated eligibility with the merits.
Guidelines Murder Cross‑Reference Affects Discretion, Not Eligibility: The court explained that while U.S.S.G. § 2D1.1(d)(1)’s cross‑reference to § 2A1.1 (first‑degree murder) may keep the advisory range at life even after recalculating drug quantities under the Fair Sentencing Act’s new thresholds, that reality goes to whether a reduction is appropriate as a matter of discretion—not whether the defendant is eligible to seek one.
Reconsideration Did Not Cure the Due Process Defect: The district court treated Brown’s post‑denial filing as a motion for reconsideration rather than as his first, fully briefed § 404 motion. Because the standard for reconsideration is more demanding and does not substitute for the initial full airing of arguments, the due process problem persisted. The Eleventh Circuit therefore vacated and remanded so the parties can brief the merits in the first instance.
No Reassignment: Applying the Gupta factors (ability to set aside prior views, appearance of justice, and efficiency), the court declined to order reassignment. There was no indication of bias, and the court expressed confidence the judge could fairly consider the matter after full briefing.

Impact and Practical Implications

Pro se Practice and Due Process: District courts in the Eleventh Circuit must refrain from recharacterizing a pro se request for counsel as a merits motion and resolving it without notice and an opportunity to be heard. If a court chooses to recharacterize, it should alert the defendant, invite briefing, and allow a response from the government before ruling.
First Step Act Eligibility Clarified: The decision reinforces that § 404(b) eligibility is determined by the offense of conviction and whether §§ 2 or 3 of the Fair Sentencing Act modified its statutory penalties. Enhancements, cross‑references, or unchanged advisory guideline ranges do not defeat eligibility. This is especially significant in cases involving the murder cross‑reference: eligibility remains; the cross‑reference is relevant later, at the court’s discretionary stage.
Discretionary Stage Still Robust: Even for eligible defendants, district courts retain broad discretion to deny reductions after considering the recalculated statutory penalty framework, the advisory Guidelines, the § 3553(a) factors, and post‑sentencing conduct. The panel intentionally left the merits to the district court on remand.
Multi‑Count Cases: Where some counts are “covered” (e.g., crack offenses under § 841(b)(1)(A) or (B)) and others are not (e.g., powder cocaine importation, firearm conspiracies), courts must isolate coverage by count but may assess overall sentencing structure at the discretionary stage. This decision underscores that partial coverage is enough to trigger § 404(b) authority.
Appointment of Counsel: The opinion does not create a right to counsel for First Step Act motions. It vacates because the court skipped process, not because counsel was required. On remand, courts may consider appointing counsel in the exercise of discretion where assistance would aid adjudication.
Unpublished but Persuasive: Though the opinion is “not for publication,” it synthesizes binding Eleventh Circuit authorities (especially Smith and Russell) and will be persuasive guidance in similar district‑court proceedings.

Complex Concepts Simplified

First Step Act § 404(b): A statute allowing a court to reduce sentences for certain pre‑August 3, 2010 crack offenses “as if” the Fair Sentencing Act’s reduced crack thresholds had been in place at the time of the offense.
Covered Offense: A conviction for which the statutory penalties were modified by §§ 2 or 3 of the Fair Sentencing Act (e.g., crack thresholds in § 841(b)). If your conviction falls into that category, you are eligible to seek a reduction.
Eligibility vs. Merits: Eligibility asks: “Do you have a covered offense?” Merits ask: “Should the court reduce your sentence in its discretion after considering the recalculated statutory ranges, advisory Guidelines, § 3553(a) factors, and your conduct?”
Murder Cross‑Reference (U.S.S.G. § 2D1.1(d)(1) → § 2A1.1): If a drug offense involved conduct amounting to murder, the Guidelines treat it like first‑degree murder, setting the offense level at 43 (life). This affects the advisory range but not § 404(b) eligibility.
Due Process in Motion Practice: Before a court denies a motion—especially one it has recharacterized from a pro se filing—it must give the parties notice and an opportunity to be heard. Denying that opportunity is a due process violation.
Reassignment on Remand: A rare remedy used to preserve the appearance of justice or where a judge cannot set aside earlier views. The Eleventh Circuit found no basis for reassignment here.

Key Takeaways

Courts may not recharacterize a pro se request for counsel as a First Step Act motion and deny it without notice and briefing; doing so violates due process.
First Step Act eligibility depends on whether the defendant’s offense of conviction is covered by the Fair Sentencing Act’s statutory modifications—not on whether the advisory Guidelines change.
Guideline cross‑references (including the murder cross‑reference) are considerations at the discretionary stage, not barriers to eligibility.
On remand, district courts should allow full adversarial briefing and then exercise discretion under § 404(b) and § 3553(a). Appointment of counsel remains discretionary.
Reassignment to a different judge is extraordinary and was not warranted on these facts.

Conclusion

United States v. Brown reinforces two critical pillars of First Step Act practice in the Eleventh Circuit. First, due process requires that when a court recharacterizes a pro se filing as a motion for a sentence reduction, it must afford fair notice and a meaningful opportunity to be heard before denying relief. Second, § 404(b) eligibility turns on whether the offense of conviction is a “covered offense”—a statutory question—rather than on whether the advisory Guidelines range would be altered by the Fair Sentencing Act. While the murder cross‑reference may weigh heavily against granting a reduction, it does not foreclose eligibility. The panel’s vacatur and remand ensure that Brown, and similarly situated defendants, receive the process the law demands and that district courts reach § 404(b) eligibility and merits determinations under the correct legal framework.