Case: 19-12499 Date Filed: 08/27/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12499
Non-Argument Calendar
________________________
D.C. Docket No. 6:96-cr-00004-JRH-CLR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KYLE MICHAEL BREWER,
a.k.a. Michael Brewer,
a.k.a. Rubber Duck,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(August 27, 2020)
Before MARTIN, ROSENBAUM, and EDMONDSON, Circuit Judges.
Case: 19-12499 Date Filed: 08/27/2020 Page: 2 of 9
PER CURIAM:
Kyle Brewer, a federal prisoner proceeding pro se, appeals the district
court’s orders (1) denying his request for a sentence reduction under 18 U.S.C. §
3582(c)(2) and the First Step Act of 2018 1 and (2) denying reconsideration of that
decision. Reversible error has been shown; we vacate the district court’s orders
and remand for further proceedings.
In 1996, a jury found Brewer guilty of (1) conspiracy to possess with intent
to distribute cocaine hydrochloride and cocaine base, in violation of 21 U.S.C. §
846 (Count 1); (2) distribution of cocaine base, in violation of 21 U.S.C. §
841(a)(1) (Count 5); (3) employment of a person under the age of 18 to distribute
cocaine base, in violation of 21 U.S.C. § 861(a) (Count 8); and (4) use of a firearm
during a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 9).
The Presentence Investigation Report (“PSI”) calculated Brewer’s base
offense level as 39. This determination was based in part on a finding that Brewer
was responsible for at least 1.925 kilograms of cocaine base. The PSI then applied
two enhancements for Brewer’s leadership role in the offense and for his
obstruction of justice. Based on the resulting total offense level of 45 and a
1
First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222.
2
Case: 19-12499 Date Filed: 08/27/2020 Page: 3 of 9
criminal history category of I, Brewer’s advisory guidelines range was calculated
as life imprisonment. Brewer’s conviction under Count 9 also carried a mandatory
minimum sentence of 60 months’ imprisonment, to run consecutive to other
sentences.
The district court sentenced Brewer to concurrent sentences of life
imprisonment for Count 1, 20 years for Count 5, and 85 years for Count 8, plus a
consecutive 60-month sentence for Count 9. We affirmed these convictions and
sentences on direct appeal. United States v. Brewer, 199 F.3d 1283, 1287 (11th
Cir. 2000) (vacating Brewer’s conviction and sentence on Count 6 and affirming
the remaining convictions and sentences). 2
In November 2011, Brewer moved for a sentence reduction, pursuant to
section 3582(c)(2) and Amendment 750 to the Sentencing Guidelines. The district
court determined that Brewer’s guideline range was lowered from life
imprisonment to 324 to 405 months, plus the 60-month consecutive sentence.
Nevertheless, the district court exercised its discretion to deny a sentence
reduction.
In June 2015, Brewer filed another section 3582(c)(2) motion pursuant to
Amendment 782 to the Sentencing Guidelines. The district court granted Brewer’s
2
Brewer has since filed several post-conviction motions. We discuss only those motions that are
pertinent to this appeal.
3
Case: 19-12499 Date Filed: 08/27/2020 Page: 4 of 9
motion. Based on a lowered total offense level of 39, the district court calculated
Brewer’s amended guideline range as 262 to 327 months’ imprisonment. The
district court then reduced Brewer’s sentence to a total of 387 months’
imprisonment (327 months for Counts 1 and 8, plus 60 months consecutive for
Count 9).
In February 2019, Brewer filed pro se the section 3582(c)(2) motion at issue
in this appeal, seeking a reduced sentence based on section 404 of the First Step
Act. Brewer requested a reduced sentence of 210 months, which he said would
reflect accurately the nature and circumstances of his offense, his history and
characteristics, and his post-conviction rehabilitation. 3
On 30 April 2019, the district court denied Brewer’s motion. The district
court determined that Brewer was “not eligible for a further reduction of his
sentence” because the First Step Act resulted in no change to Brewer’s amended
guideline range of 262 to 327 months’ imprisonment.
Brewer then moved for reconsideration of the district court’s 30 April 2019
order. Brewer also requested a full resentencing hearing. The district court denied
3
Brewer also asserted (and contends on appeal) that -- because no specific drug amount was
charged in his indictment or found by the jury -- he is accountable for only an “unspecified
amount” of cocaine base and is thus subject to a 240-month statutory maximum sentence under
21 U.S.C. § 841(b)(1)(C). We disagree. We have rejected a similar argument in United States v.
Jones, 962 F.3d 1290 (11th Cir. 2020). There, we explained that “just as a movant may not use
Apprendi to collaterally attack his sentence, he cannot rely on Apprendi to redefine his offense
for purposes of a First Step Act motion.” 962 F.3d at 1302 (citation omitted) (discussing
Apprendi v. New Jersey, 530 U.S. 466 (2000)).
4
Case: 19-12499 Date Filed: 08/27/2020 Page: 5 of 9
relief. The district court explained that Brewer had been sentenced under the
guideline range applicable to his offense conduct involving 1.925 kilograms of
cocaine base: an amount “far in excess of even the increased quantities necessary
to trigger a statutory mandatory minimum sentence.” As a result, the Fair
Sentencing Act would have no effect on Brewer’s guidelines range. The district
court added these words:
Because the First Step Act of 2018 does not change the current
advisory guidelines applicable to Defendant, and upon a thorough
consideration of the nature and circumstances of the offense, as well
as the history and characteristics of this Defendant, the Court is not
persuaded to reduce his sentence and therefore a hearing is not
warranted.
After the district court denied Brewer relief under the First Step Act -- and
while Brewer’s appeal was pending -- we issued our decision in United States v.
Jones, 962 F.3d 1290 (11th Cir. 2020), in which we addressed the meaning and
proper application of section 404 of the First Step Act. Our decision in Jones
controls this appeal.
We review de novo whether a district court had the authority to modify a
term of imprisonment under the First Step Act. Jones, 962 F.3d at 1296. “We
review for abuse of discretion the denial of an eligible movant’s request for a
reduced sentence under the First Step Act.” Id.
District courts lack the inherent authority to modify a term of imprisonment
but may do so if permitted expressly by statute. See 18 U.S.C. § 3582(c)(1)(B).
5
Case: 19-12499 Date Filed: 08/27/2020 Page: 6 of 9
The First Step Act provides such express authority. Briefly stated, the First Step
Act “permits district courts to apply retroactively the reduced statutory penalties
for crack-cocaine offenses in the Fair Sentencing Act of 2010 to movants
sentenced before those penalties became effective.” Jones, 962 F.3d at 1293
(emphasis added).
Under section 404(b) of the First Step Act, “a district 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. at 1297 (quotations and alterations omitted). To be eligible for a
reduction under section 404(b), a movant must have been sentenced for a “covered
offense” as defined in section 404(a). Id. at 1298. We have said that a movant has
committed a “covered offense” if the movant’s offense triggered the higher
statutory penalties for crack-cocaine offenses in 21 U.S.C. § 841(b)(1)(A)(iii) or
(B)(iii): penalties that were later modified by the Fair Sentencing Act.4 See id. at
1298.
In determining whether a movant has a “covered offense” under the First
Step Act, the district court “must consult the record, including the movant’s
charging document, the jury verdict or guilty plea, the sentencing record, and the
final judgment.” Id. at 1300-01. The pertinent question is whether the movant’s
4
Fair Sentencing Act of 2010, Pub. L. No. 111-220, §§ 2-3, 124 Stat. 2372, 2372.
6
Case: 19-12499 Date Filed: 08/27/2020 Page: 7 of 9
conduct satisfied the drug-quantity element in §§ 841(b)(1)(A)(iii) (50 grams or
more of crack cocaine) or 841(b)(1)(B)(iii) (5 grams or more of crack cocaine) and
subjected the movant to the statutory penalties in those subsections. Id. at 1301-
02. If so -- and if the offense was committed before 3 August 2010 (the effective
date of the Fair Sentencing Act) -- then the movant’s offense is a “covered
offense,” and the district court may reduce the movant’s sentence “as if” the
applicable provisions of the Fair Sentencing Act “were in effect at the time the
covered offense was committed.” First Step Act § 404(b); Jones, 962 F.3d at 1301,
1303.
Here, the sentencing court found Brewer responsible for an amount of crack
cocaine (1.925 kilograms) that exceeded 50 grams. Brewer’s offense conduct thus
triggered the higher statutory penalty in section 841(b)(1)(A)(iii). Because
Brewer’s offense was committed before 3 August 2010, his offense constitutes a
“covered offense” within the meaning of the First Step Act. So, Brewer is eligible
for a reduced sentence. See Jones, 962 F.3d at 1301-02.
Eligibility does not mean entitlement, however. The district courts retain
“wide latitude” to determine whether and to what extent to grant a sentence
reduction. Id. at 1304. In exercising that discretion, district courts may consider
“all the relevant factors,” including the 18 U.S.C. § 3553(a) sentencing factors. Id.
7
Case: 19-12499 Date Filed: 08/27/2020 Page: 8 of 9
Nevertheless, “[a] district court abuses its discretion when it applies an incorrect
legal standard.” Id. (quotation omitted).
Where the record is ambiguous about whether the district court understood
its authority to reduce a sentence under the First Step Act, we will vacate the order
and remand for further proceedings. See id. at 1305. The record in this case is
ambiguous about whether the court understood its authority to reduce Brewer’s
sentence. In its 30 April 2019 order denying Brewer’s motion for a sentence
reduction, the district court determined -- incorrectly -- that Brewer was “not
eligible for a further reduction of his sentence.” Then, in denying Brewer’s motion
for reconsideration, the district court stressed again that the First Step Act resulted
in no lowering of Brewer’s advisory guidelines range. Although the district court
also said it was “not persuaded” to reduce Brewer’s sentence after considering the
nature and circumstances of the offense and Brewer’s history and characteristics,
we cannot rule out that the district court (because it -- for eligibility -- seemed to
focus on Guidelines instead of statutory penalties) believed that it lacked the
authority to reduce Brewer’s sentence under the First Step Act.
Because we cannot tell whether the district court understood correctly the
scope of its authority under section 404(b), we vacate the orders denying Brewer’s
8
Case: 19-12499 Date Filed: 08/27/2020 Page: 9 of 9
motion for a reduced sentence and Brewer’s motion for reconsideration and
remand for further proceedings.5
VACATED AND REMANDED.
5
Contrary to Brewer’s assertions on appeal, Brewer is unentitled to a resentencing hearing under
the First Step Act. See United States v. Denson, 963 F.3d 1080, 1082 (11th Cir. 2020)
(concluding 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 sentenced under
the Act.”).
9