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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14493
Non-Argument Calendar
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D.C. Docket No. 8:06-cr-00199-SCB-SPF-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY GENE KILGORE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 10, 2020)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Bobby Kilgore appeals the district court’s order denying his motion to
reduce his sentence, under the First Step Act of 2018, Pub. L. No. 115-391,
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§ 404(b), 132 Stat. 5194, 5222 (“First Step Act”) and 18 U.S.C. § 3582(c)(1)(B),
and specifically its finding that he was not eligible for relief. He argues that
eligibility for relief under the First Step Act depends on a defendant’s statute of
conviction, not on his admitted relevant conduct.
In 2006, a grand jury charged Kilgore, along with another codefendant, Paul
Lamar, with one count of distributing, and aiding and abetting in the distribution of
“five (5) grams or more of a mixture or substance containing a detectable amount
of cocaine base” —crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
and 18 U.S.C. § 2. Ultimately, Kilgore agreed to plead guilty as charged pursuant
to written plea agreement. In his plea agreement, he agreed that he distributed at
least five grams of crack cocaine.
Applying the November 2006 version of the Sentencing Guidelines,
Kilgore’s PSI assigned him a base offense level of 30 because his offense involved
at least 35 grams but less than 50 grams of crack cocaine, pursuant to U.S.S.G. §
2D1.1(c)(5). The PSI determined that Kilgore was a career offender based on two
prior felony convictions, and therefore, because the maximum penalty for his
offense was 25 years or more, it increased his offense level to 34, pursuant to §
4B1.1(b)(B). He received a two-level reduction for acceptance of responsibility,
under § 3E1.1(a), and another one-level reduction for assisting authorities in the
investigation and prosecution of his own conduct, under § 3E1.1(b). Accordingly,
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Kilgore’s total offense level was 31. Based on an offense level of 31 and a
criminal history category of VI, the PSI determined that Kilgore’s sentencing range
was 188 to 235 months’ imprisonment. The PSI noted that the mandatory term of
imprisonment was 5 years and the maximum term was 40 years. The court
ultimately sentenced Kilgore to 188 months’ imprisonment, followed by 4 years of
supervised release.
In September 2019, Kilgore, through counsel, filed the instant motion for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(B) and § 404 of the First
Step Act. The district court denied Kilgore’s motion. It first determined that
Kilgore was not eligible for a sentence reduction because his violation of a covered
offense was not determined merely by the statute of conviction, but also his
offense conduct. Therefore, the court concluded that, because Kilgore’s offense
involved 49.8 grams of crack cocaine, his statutory penalty range was not altered.
Finally, the court concluded that, even if Kilgore was eligible for a sentence
reduction, it would still not reduce his sentence due to his disciplinary violations
while incarcerated.
When appropriate, we will review de novo whether a district court had the
authority to modify a term of imprisonment. United States v. Jones, 962 F.3d
1290, 1296 (11th Cir. 2020). We will review the district court’s denial of an
eligible movant’s request for a reduced sentence under the First Step Act for an
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abuse of discretion. Id. A district court abuses its discretion when it “applies an
incorrect legal standard.” Diveroli v. United States, 803 F.3d 1258, 1262 (11th Cir.
2015) (quotation marks omitted).
District courts lack the inherent authority to modify a term of imprisonment
but may do so to the extent that a statute expressly permits. 18 U.S.C.
§ 3582(c)(1)(B). The First Step Act expressly permits district courts to reduce a
previously imposed term of imprisonment. Jones, 962 F.3d at 1297. The Fair
Sentencing Act, enacted on August 3, 2010, amended 21 U.S.C. §§ 841(b)(1) and
960(b) to reduce the sentencing disparity between crack and powder cocaine. Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (“Fair Sentencing
Act”); see Dorsey v. United States, 567 U.S. 260, 268-69 (2012) (detailing the
history that led to the enactment of the Fair Sentencing Act, including the
Sentencing Commission’s criticisms that the disparity between crack cocaine and
powder cocaine offenses was disproportional and reflected race-based differences).
Section 2 of the Fair Sentencing Act changed the quantity of crack cocaine
necessary to trigger a 10-year mandatory minimum from 50 grams to 280 grams
and the quantity necessary to trigger a 5-year mandatory minimum from 5 grams to
28 grams. Fair Sentencing Act § 2(a)(1)-(2); see also 21 U.S.C. §
841(b)(1)(A)(iii), (B)(iii). These amendments were not made retroactive to
defendants who were sentenced before the enactment of the Fair Sentencing Act.
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United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). The Fair Sentencing
Act did not expressly make any changes to § 841(b)(1)(C), which provides for a
term of imprisonment of not more than 20 years for cases involving quantities of
crack cocaine that do not fall within § 841(b)(1)(A) or (B). See Fair Sentencing
Act § 2(a); 21 U.S.C. § 841(b)(1)(C).
In 2018, Congress enacted the First Step Act, which made retroactive the
statutory penalties for covered offenses enacted under the Fair Sentencing Act. See
First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, § 404. Under § 404(b) of the
First Step Act, a court “that imposed a sentence for a covered offense may . . .
impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . .
were in effect at the time the covered offense was committed.” Id. § 404(b). The
statute defines “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.” Id. § 404(a).
The First Step Act further states that “[n]othing in this section shall be construed to
require a court to reduce any sentence pursuant to this section.” Id. § 404(c).
In Jones, we considered the appeals of four federal prisoners whose motions
for a reduction of sentence pursuant to § 404(b) were denied in the district courts.
See Jones, 962 F.3d at 1293. First, we held that a movant was convicted of a
“covered offense” if he was convicted of a crack-cocaine offense that triggered the
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penalties in § 841(b)(1)(A)(iii) or (B)(iii). Id. at 1301. Interpreting the First Step
Act’s definition of a “covered offense,” we concluded that the phrase “the statutory
penalties for which were modified by section 2 or 3 of the Fair Sentencing Act”
(the “penalties clause”) modifies the term “violation of a Federal criminal statute.”
Id. at 1298; see First Step Act § 404(a). Thus, “a movant’s offense is a covered
offense if section two or three of the Fair Sentencing Act modified its statutory
penalties.” Jones, 962 F.3d at 1298. Because section two of the Fair Sentencing
Act “modified the statutory penalties for crack-cocaine offenses that have as an
element the quantity of crack cocaine provided in subsections 841(b)(1)(A)(iii) and
(B)(iii),” a movant has a covered offense if he was sentenced for an offense that
triggered one of those statutory penalties. Id.
District courts must consult the record, including the movant’s charging
document, the jury verdict or guilty plea, the sentencing record, and the final
judgment, to determine whether the movant’s offense triggered the penalties in
§ 841(b)(1)(A)(iii) or (B)(iii) and, therefore, was a covered offense. Id. at
1300‑01. We rejected the government’s argument in Jones that, when conducting
this inquiry, the district court should consider the actual quantity of crack cocaine
involved in the movant’s violation. Id. at 1301. Rather, the district court should
consider only whether the quantity of crack cocaine satisfied the specific drug
quantity elements in § 841—in other words, whether his offense involved 50 grams
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or more of crack cocaine, therefore triggering § 841(b)(1)(A)(iii), or between 5 and
50 grams, therefore triggering § 841(b)(1)(B)(iii). Id.
Accordingly, any actual amount of drugs involved in the movant’s offense
beyond the amount related to his statutory penalty is not relevant to whether he
was convicted of a covered offense. Id. at 1301-02. However, a judge’s actual
drug-quantity finding remains relevant to the extent that the judge’s finding
triggered a higher statutory penalty. Id. at 1302. Thus, a movant sentenced prior
to Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the Supreme Court held
that facts, such as a drug quantity, that increase a defendant’s statutory maximum
must be made by a jury, cannot “redefine his offense” to one triggering a lower
statutory penalty simply because the district court, not a jury, made the drug-
quantity finding relevant to his statutory penalty. See id.
Applying this inquiry to the four movants in Jones, we concluded that all
four were sentenced for covered offenses because they were all sentenced for
offenses whose penalties were modified by the Fair Sentencing Act. Id. at 1302-
03. Specifically, similar to the situation in the instant case, we determined that one
movant, Alfonso Allen—who was charged in 2006 with 50 grams or more of crack
cocaine, found by a jury to be responsible for that drug amount, and attributed with
between 420 and 784 grams of crack cocaine per week at sentencing—was
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convicted of a covered offense, noting that the higher drug‑quantity finding at
sentencing did not trigger the statutory penalty for his offense. Id.
Next, we explained that a movant’s satisfaction of the “covered offense”
requirement does not necessarily mean that the district court is authorized to
reduce his sentence. Id. at 1303. Specifically, the “as if” qualifier in Section
404(b) of the First Step Act, which states that any reduction must be “as if sections
2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered
offense was committed,” imposes two limitations on the district court’s authority.
Id. (quotation marks omitted) (alteration in original); see First Step Act § 404(b).
First, the district court cannot reduce a sentence where the movant received the
lowest statutory penalty that would also be available to him under the Fair
Sentencing Act. Jones, 962 F.3d at 1303. Second, in determining what a movant’s
statutory penalty would have been under the Fair Sentencing Act, the district court
is bound by a previous drug-quantity finding that was used to determine the
movant’s statutory penalty at the time of sentencing. Id. Moreover, the
Constitution does not prohibit district courts from relying on judge-found facts that
triggered statutory penalties prior to Apprendi. See id. at 1304-04
Applying these limitations, we held in Jones that, if a movant’s sentence
necessarily would have remained the same had the Fair Sentencing Act been in
effect—in other words, if his sentence was equal to the mandatory minimum
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imposed by the Fair Sentencing Act for the quantity of crack cocaine that triggered
his statutory penalty—then the Fair Sentencing Act would not have benefitted him,
and the First Step Act does not authorize the district court to reduce his sentence.
Id. at 1303.
Applying this “as-if” framework, we vacated and remanded the denials of
two of the movants’ motions because the district courts had authority to reduce
their sentences under the First Step Act, but it was unclear whether the courts had
recognized that authority. Id. at 1304‑05. Specifically, as to movant Allen, we
noted that the district court denied the motion because Allen’s guideline range
remained the same, based on the drug-quantity finding made at sentencing, and his
sentence was already at the low-end of that guideline range, such that the court
may have incorrectly concluded that he was not eligible for a further reduction. Id.
at 1305. We held that it was error for the district courts to conclude that a movant
was ineligible based on (1) a higher drug-quantity finding that was made for
sentencing—not statutory—purposes, (2) a movant’s career-offender status, or (3)
a movant’s sentence being at the bottom of the guideline range. Id. Because it was
ambiguous whether the district courts denied their motions for one of those
reasons, we vacated and remanded the denials for further consideration. Id.
Finally, we noted in Jones that although a district court may have the
authority to reduce a sentence under Section 404 of the First Step Act, it is not
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required to do so. Id. at 1304. We held that a district court has wide latitude to
determine whether and how to exercise its discretion, and that it may consider the
18 U.S.C. § 3553(a) factors and a previous drug-quantity finding made for the
purposes of relevant conduct. Id. at 1301, 1304.
We affirm the district court’s denial of Kilgore’s motion for a sentence
reduction. Based on our recent decision in Jones, Kilgore is correct that he was
eligible for a sentence reduction. Although the district court erroneously held that
Kilgore was ineligible for a sentence reduction (erroneously relying on his relevant
conduct involving 49.8 grams), in an alternative holding, the district court also
expressly exercised its discretion not to reduce the sentence. See Doc. 183 at 5
(“[B]ecause the 2018 FSA [First Step Act] is discretionary, and not mandatory, the
Court would not reduce Defendant’s sentence even if he were eligible for sentence
reduction under the 2018 FSA due to his disciplinary violations while he has been
incarcerated in the Bureau of Prisons”). Such a determination was not an abuse of
discretion, and Kilgore has not argued otherwise. Therefore, we affirm.
AFFIRMED.
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United States v. Bobby Gene Kilgore
Combined Opinion