Case: 19-12007 Date Filed: 08/26/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12007
Non-Argument Calendar
________________________
D.C. Docket No. 8:01-cr-00022-RAL-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT STEPHENS, JR.,
a.k.a. Elbert Stephens,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 26, 2020)
Before MARTIN, ROSENBAUM and DUBINA, Circuit Judges.
PER CURIAM:
Case: 19-12007 Date Filed: 08/26/2020 Page: 2 of 7
Appellant Albert Stephens, Jr., appeals the district court’s order partially
denying his motion for a sentence reduction, pursuant to the First Step Act of 2018,
Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222, which authorizes a sentence
reduction for defendants who were convicted of offenses whose statutory penalties
were modified by the Fair Sentencing Act of 2010. He argues that the district
court erred in denying him relief because, regardless of whether his guideline range
remained unchanged, he was convicted of an offense whose statutory penalties
were modified by the Fair Sentencing Act. Accordingly, he argues that he was
convicted of a “covered offense” under the First Step Act, and thus, the district
court had the authority to reduce his sentence.
I.
We 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). District courts lack the inherent authority to modify a term of
imprisonment, but they 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.
II.
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
2
Case: 19-12007 Date Filed: 08/26/2020 Page: 3 of 7
powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.
2372; see Dorsey v. United States, 567 U.S. 260, 268–69, 132 S. Ct. 2321, 2328–
29 (2012). 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).
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, § 404, 132 Stat. 5194. 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).
Recently, 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
3
Case: 19-12007 Date Filed: 08/26/2020 Page: 4 of 7
district courts. See 962 F.3d at 1293. First, 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 2 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.at 1298, 1301.
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, as to one of the defendants, the indictment charged him with 50 grams or
more of crack cocaine, and the district court found a drug quantity of at least 50
grams of crack cocaine. Id. at 1302. Because the Fair Sentencing Act modified
the statutory penalties for offenses that involved 50 grams or more of crack
cocaine, his offense qualified as a covered offense. Id.
4
Case: 19-12007 Date Filed: 08/26/2020 Page: 5 of 7
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. Applying these
limitations, we held 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 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.
5
Case: 19-12007 Date Filed: 08/26/2020 Page: 6 of 7
Applying this “as-if” framework, we affirmed the denials of two of the
movants’ motions, but vacated and remanded as to the others 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. 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. at 1305. 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 that, although a district court may have the authority to
reduce a sentence under Section 404 of the First Step Act, it is not 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 § 3553(a)
factors and a previous drug-quantity finding made for the purposes of relevant
6
Case: 19-12007 Date Filed: 08/26/2020 Page: 7 of 7
conduct. Id. at 1301, 1304. Moreover, in a similar case, we held that the First Step
Act does not authorize a district court to conduct a plenary or de novo resentencing
in which it reconsiders sentencing guideline calculations unaffected by sections 2
and 3 of the Fair Sentencing Act. See United States v. Denson, 963 F.3d 1080,
1086–87 (11th Cir. 2020).
III.
In the instant case, the district court correctly acknowledged that Stephens
was convicted of a “covered offense” and was eligible for relief under the First
Step Act. Based upon our review of the record, however, it is unclear whether the
district court understood that it had the authority to reduce Stephens’s sentence.
The district court may have incorrectly concluded that Stephens was not eligible
for a further reduction because his guideline range remained the same.
Accordingly, for the aforementioned reasons, we vacate the district court’s order
partially denying Stephens’s motion for a sentence reduction and remand to the
district court for further proceedings consistent with this opinion.
VACATED AND REMANDED.
7
United States v. Albert Stephens, Jr.
Combined Opinion