Case: 19-13331 Date Filed: 08/13/2020 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13331
Non-Argument Calendar
________________________
D.C. Docket No. 3:05-cr-00002-LC-MD-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN DEWAYNE SIMS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 13, 2020)
Before ROSENBAUM, LAGOA, and HULL, Circuit Judges.
PER CURIAM:
Kevin Sims appeals the district court’s denial of his motion for a sentence
reduction under § 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
Case: 19-13331 Date Filed: 08/13/2020 Page: 2 of 13
5194 (2018). He maintains that he was eligible for a sentence reduction and that the
district court erred by failing to revisit his guideline range, including his status as a
career offender, under the current Sentencing Guidelines manual. After careful
review, we affirm.
I.
In February 2005, Sims pled guilty to conspiracy to distribute and possess
with intent to distribute 50 grams or more of cocaine base, also known as crack
cocaine. With that quantity, Sims was subject to the penalties in 21 U.S.C.
§ 841(b)(1)(A)(iii). The government filed an information under 21 U.S.C. § 851(a)
to establish that he had previously been convicted of three felony drug offenses. As
a repeat offender, he faced a statutory minimum sentence of life imprisonment.
The presentence investigation report (“PSR”) determined that Sims qualified
as a “career offender” under U.S.S.G. § 4B1.1 based on prior Florida state
convictions for burglary of a dwelling and delivery of cannabis. Because the
statutory maximum was life, his base offense level under § 4B1.1(b) was 37, instead
of the base offense level of 36 that would have applied based on the drug quantity
of 1.2 kilograms of crack cocaine. After adjusting for acceptance of responsibility,
the PSR calculated his career-offender guideline range to be 262 to 327 months in
prison. Due to the § 851 enhancement, however, his guideline range became the
mandatory minimum sentence of life imprisonment. See U.S.S.G. § 5G1.1(b).
2
Case: 19-13331 Date Filed: 08/13/2020 Page: 3 of 13
At Sims’s sentencing in May 2005, the district court adopted the PSR’s factual
statements and guideline calculations without objection. The court ultimately
sentenced Sims below the statutory minimum of life—to 240 months in prison—
based on the government’s substantial-assistance motion under U.S.S.G. § 5K1.1.
Approximately five years after Sims was sentenced, Congress passed the Fair
Sentencing Act of 2010 to reform the penalties for crack cocaine offenses. See Pub.
L. 111-220, 124 Stat 2372 (2010); Kimbrough v. United States, 552 U.S. 85, 97–98
(2007). As relevant to this case, a defendant now must traffic at least 280 grams of
crack cocaine (formerly 50 grams) to trigger the highest penalties, 21 U.S.C.
§ 841(b)(1)(A)(iii), and 28 grams of crack cocaine (formerly 5 grams) to trigger the
intermediate penalties, id. § 841(b)(1)(B)(iii). See Fair Sentencing Act § 2.1 But
until recently, these reduced penalties applied to only defendants who were
sentenced on or after August 3, 2020, the effective date of the Fair Sentencing Act.
Dorsey v. United States, 567 U.S. 260, 264 (2012).
In the First Step Act, Congress made these reduced penalties retroactive. First
Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Section 404 of the
First Step Act authorizes the district courts to reduce the sentences of crack cocaine
1
In addition, the Fair Sentencing Act eliminated the five-year mandatory minimum
sentence for simple possession of crack cocaine. Fair Sentencing Act § 3; see 21 U.S.C. § 844(a)
(2005).
3
Case: 19-13331 Date Filed: 08/13/2020 Page: 4 of 13
defendants as if § 2 of the Fair Sentencing Act had been in effect when they
committed their crimes. Id. § 404(b).
In January 2019, Sims filed a pro se motion to reduce his sentence under § 404
of the First Step Act. After the district court appointed counsel, Sims filed a renewed
motion arguing that he was eligible for a reduction because, under § 2 of the Fair
Sentencing Act, he would have faced a minimum penalty of ten years in prison
instead of life imprisonment. He further contended that the court should use the
current version of the Sentencing Guidelines manual in awarding a reduction. Under
current Guidelines, he asserted, he was no longer a career offender and his guideline
range was 140 to 175 months.
The government responded that Sims was not eligible for a reduction under
§ 404 because, in its view, Sims remained subject to a mandatory life sentence under
the Fair Sentencing Act based on the amount of crack cocaine he was held
responsible for at sentencing. But even if Sims was eligible for a reduction,
according to the government, the court should exercise its discretion to deny relief.
The district court denied Sims’s motion for a sentence reduction. The court
noted the “difficult and consequential” question of how to determine eligibility
under the First Step Act—that is, whether eligibility is “based on the statute of
conviction” or “on the actual offense conduct.” But the court found it unnecessary
4
Case: 19-13331 Date Filed: 08/13/2020 Page: 5 of 13
to resolve that question because, assuming eligibility, reductions under § 404 were
discretionary and a reduction was not warranted in Sims’s case.
In exercising its discretion to deny the motion, the district court considered
“the reduced statutory range, the 18 U.S.C. § 3553(a) factors and any evidence of
post-sentencing mitigation.” Beginning with the amended guideline range, the court
stated that, if the Fair Sentencing Act was in effect at sentencing, “his Guidelines
range would remain unchanged—262 to 327 months”—because it was still driven
by his career-offender status. The court found that it lacked the authority to revisit
that status and that, in any event, revisiting the career-offender designation would
work an injustice to prisoners serving a career-offender sentence who lacked a
qualifying conviction under the First Step Act. In addition, the court found that the
prior drug quantity finding at sentencing of 1.2 kilograms of crack cocaine
“remain[ed] intact” and weighed against a reduction. Sims’s history and
characteristics also weighed against a reduction, according to the court, because his
240-month sentence served his demonstrated need for specific deterrence in light of
his criminal history, which “reflect[ed] a pattern of progressively more serious drug
offenses.” While the court also found “countervailing factors,” including Sims’s
earning of his GED, participation in other education programming, maintenance of
stable employment, and marked improvement of his behavior, it concluded that these
rehabilitative efforts did not overcome the seriousness of the offense or the needs for
5
Case: 19-13331 Date Filed: 08/13/2020 Page: 6 of 13
retribution, deterrence, and protection of the public, all of which were appropriately
reflected in his original 240-month sentence.
On appeal, Sims argues that the district court erred in finding that he was
ineligible for relief and in refusing to recalculate his guideline range under current
law. Sims reasons that, under § 404, the court was authorized to “impose” a reduced
sentence, which, in Sims’s view, means that the court could conduct a full
resentencing in light of all relevant factors, including subsequent changes in the law
beyond those mandated by the Fair Sentencing Act. Finally, Sims maintains that the
240-month sentence is both procedurally and substantively unreasonable.
II.
We review de novo whether a district court has the authority to modify a term
of imprisonment under the First Step Act. United States v. Jones, 962 F.3d 1290,
1296 (11th Cir. 2020). We review the district court’s denial of an eligible First Step
Act movant’s request for a reduced sentence for an abuse of discretion. Id. A district
court abuses its discretion if it applies the wrong legal standard, fails to follow proper
procedures, or commits a clear error of judgment. Rath v. Marcoski, 898 F.3d 1306,
1309 (11th Cir. 2018).
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). As relevant here, the First Step Act expressly permits district
6
Case: 19-13331 Date Filed: 08/13/2020 Page: 7 of 13
courts to “impose a reduced sentence for defendants as if sections 2 and 3 of the Fair
Sentencing Act . . . were in effect at the time the covered offense was committed.’”
First Step Act § 404(b). In other words, § 404 of the First Step Act makes retroactive
the reduced statutory penalties for certain crack cocaine offenses under the Fair
Sentencing Act, which originally did not apply to defendants who were sentenced
before the effective date of that act. See Jones, 962 F.3d at 1297. Nevertheless,
even if a defendant is eligible for a reduction, nothing in the First Step Act
“require[s] a court to reduce any sentence.” First Step Act § 404(c).
To be eligible for a reduction under § 404(b), the defendant must have been
sentenced for a “covered offense” as defined in § 404(a). Jones, 962 F.3d at 1298.
The term “covered offense” means “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).
This definition generated competing views as to how to determine
eligibility—that is, whether the relevant “statutory penalties” were determined based
on the statute of conviction or the defendant’s actual conduct. See Jones, 962 F.3d
at 1298–1301. Much of the argument below in this case focused on this eligibility
dispute. Side-stepping this dilemma, the district court concluded that, even
assuming Sims was eligible, sentence reductions under § 404 were discretionary and
a reduction was not warranted in Sims’s case.
7
Case: 19-13331 Date Filed: 08/13/2020 Page: 8 of 13
After this case was briefed, we decided Jones, which rejected a conduct-based
approach to determining eligibility and held that a defendant has a “covered offense”
if “the movant’s offense triggered the higher penalties in section 841(b)(1)(A)(iii) or
(B)(iii).” Id. at 1300–01. Soon after Jones, we decided United States v. Denson,
963 F.3d 1080, 1082 (11th Cir. 2020), which held that the First Step Act does not
require district courts to hold a hearing with the defendant present before ruling on
a defendant’s motion for a reduced sentence under the Act. The parties have since
filed supplemental briefs in response to our request for their views on whether Jones
and Denson impact this case.
III.
Here, the district court did not abuse its discretion by denying Sims a reduction
under the First Step Act. We find none of Sims’s arguments to the contrary
persuasive.
First, Sims incorrectly states that the district court found him ineligible for a
sentence reduction. In fact, the court found it unnecessary to decide Sims’s
eligibility because, even assuming he was eligible, he did not warrant a reduction as
a matter of discretion. We agree with Sims that, under Jones, he is eligible for a
sentence reduction under the First Step Act because his “offense triggered the higher
penalties in section 841(b)(1)(A)(iii) or (B)(iii).” Jones, 962 F.3d at 1300–01. But
whether to grant a reduction is discretionary. See id. at 1304. And it is unnecessary
8
Case: 19-13331 Date Filed: 08/13/2020 Page: 9 of 13
to remand for further proceedings because we already know that the district court
would exercise its discretion to deny a reduction. So any error at the eligibility stage
of the analysis is harmless. See United States v. Robles, 408 F.3d 1324, 1327–28
(11th Cir. 2005) (explaining that sentencing errors are harmless when we know with
certainty “what the district court would do upon remand”).
Second, Sims contends that the district court erred in concluding that his
guideline range remained the same after accounting for § 2 of the Fair Sentencing
Act. The court arguably misspoke by stating that his guideline range “would remain
unchanged” at 262–327 months. That was the guideline range calculated under the
career offender guideline, without accounting for the original mandatory minimum
of life imprisonment, which increased the guideline range to life imprisonment. See
U.S.S.G. § 5G1.1(b). Because that mandatory minimum no longer applies to Sims’s
offense, the Fair Sentencing Act as applied retroactively through the First Step Act
had the effect of lowering the guideline range back to the career offender guideline
range of 262–327 months. That range “remain[ed] unchanged.” In any event, Sims
admits that, “according to the 2005 version of the Guidelines, Mr. Sims’ guidelines
range is 262–327 months’ imprisonment.” See Br. of Appellant at 31. So the court’s
error, if any, does not warrant reversal because the error did not affect Sims’s
eligibility, and the court used the correct amended guideline range.
9
Case: 19-13331 Date Filed: 08/13/2020 Page: 10 of 13
Third, Sims maintains that the district court erred in concluding that it did not
have the authority to revisit his guideline calculations and to conduct a de novo
resentencing under the current Guidelines manual. Under the current manual,
according to Sims, he is no longer a career offender and his guideline range is 140
to 175 months.
The reasoning supporting our alternative holding in Denson precludes the
conclusion Sims urges. In Denson, we first held that a defendant did not have a legal
right to be present at a hearing before the district court rules on a motion for a
sentence reduction under the First Step Act. Denson, 963 F.3d at 1082. We
explained that nothing in the statute itself gives defendants such a right. Id. at 1086–
87. In addition, we explained that motions under the First Step Act are governed by
Rule 43, Fed. R. Crim. P., “which expressly provides that [the defendant’s] presence
is not required in a § 3582(c) proceeding.” Id. at 1087. And because “the right to
be present under Rule 43 is at least as broad as the right [to be present] under the
Due Process Clause,” there is “no due process concern” where Rule 43 does not
require a defendant’s presence. Id. at 1087–88.
“Alternatively, and as an independent holding,” we held that a “§ 3582(c)
sentencing modification based on the First Step Act is not a critical stage” under
United States v. Brown, 879 F.3d 1231 (11th Cir. 2018), which established a two-
10
Case: 19-13331 Date Filed: 08/13/2020 Page: 11 of 13
part test to determine whether a modification of a sentence is a “critical stage” that
requires a defendant’s presence.2 Denson, 963 F.3d at 1089.
Rejecting the defendant’s argument that the First Step Act gave district courts
a “broad grant of discretion,” we explained that “a sentence reduction based on the
First Step Act is a limited remedy, and the district court is not called upon to answer
questions it did not consider at the original sentencing.” Id. at 1085, 1089. Thus,
“the First Step Act does not authorize the district court to conduct a plenary or de
novo resentencing.” Id. at 1089.
Accordingly, under Denson, the district court was not required or even
authorized to conduct a plenary resentencing in response to Sims’s First Step Act
motion. See id. That’s consistent with the plain terms of § 404(b), which provides
for the retroactive application—looking backward to the “time the covered offense
was committed”—of only “sections 2 and 3 of the Fair Sentencing Act,” not of any
other changes in law. First Step Act § 404(b). Therefore, even assuming district
courts may consider the current guideline range when “determin[ing] whether and
how to exercise their discretion in this context,” Jones, 962 F.3d at 1304, the district
2
The Denson panel first concluded that Brown’s two-part framework did not apply to
sentencing modifications based on § 3582(c) motions. Denson, 963 F.3d at 1088–89. It then
reached its alternative holding “assuming arguendo that we should apply Brown’s fact-intensive
framework.” Sims maintains that the court’s statements regarding Brown are therefore dicta. But
“in this circuit additional or alternative holdings are not dicta, but instead are as binding as solitary
holdings.” Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008). And the panel’s
discussion of the scope of the district court’s powers under the First Step Act was necessary to its
alternative holding under Brown.
11
Case: 19-13331 Date Filed: 08/13/2020 Page: 12 of 13
court here did not legally err by refusing to recalculate Sims’s guideline range under
current law.3
Finally, Sims argues that his 240-month sentence is both procedurally and
substantively unreasonable. Courts are not required to grant a reduction even where
a defendant is eligible, however. First Step Act § 404(c). And “[i]n exercising their
discretion, they may consider all the relevant factors, including the statutory
sentencing factors, 18 U.S.C. § 3553(a),” as well as post-sentencing conduct. See
Jones, 962 F.3d at 1304 (citing United States v. Allen, 956 F.3d 355, 357 (6th Cir.
2020) (“[Section] 404’s language does not require courts to ignore all developments
that occurred after the defendant committed the covered offense when considering
whether to reduce a defendant’s sentence.”)).
Here, the district court assumed it had the authority to grant a sentence
reduction and expressly considered several § 3553(a) factors relevant to that
determination. In particular, the court cited Sims’s original sentence of 240 months;
the guideline range as impacted by the Fair Sentencing Act; the substantial quantity
of drugs for which Sims was held responsible at sentencing (1.2 kilograms of crack
cocaine); his prior criminal history; and his post-sentencing rehabilitative conduct.
See id. at 1301 (“[A] district court, of course, could consider its previous findings of
3
Moreover, the district court explained why it would not revisit the career-offender
designation as a matter of discretion even if it were authorized to do so.
12
Case: 19-13331 Date Filed: 08/13/2020 Page: 13 of 13
relevant conduct in deciding whether to exercise its discretion to reduce an eligible
movant’s sentence under section 404(b) of the First Step Act.”). Balancing these
factors, the court concluded that no reduction under the First Step Act was warranted.
Based on the record and the court’s thorough explanation of its reasoning, we are
satisfied that the court took the pertinent factors into account, balanced them
reasonably, and did not abuse its discretion in denying a reduction.
Because Sims has not shown that the district court applied the wrong legal
standard, failed to follow proper procedures, or otherwise made a clear error of
judgment, we affirm the district court’s discretionary decision to deny his motion for
a sentence reduction under the First Step Act. See Rath, 898 F.3d at 1309.
AFFIRMED.
13