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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11976
Non-Argument Calendar
________________________
D.C. Docket No. 0:10-cr-60284-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM LANIER,
a.k.a. Red,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 4, 2020)
Before JILL PRYOR, BRASHER and HULL, Circuit Judges.
PER CURIAM:
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William Lanier, a federal prisoner, appeals the district court’s order denying
his motion to reduce sentence pursuant to the First Step Act and 18 U.S.C.
§ 3582(c)(1)(B). He argues that the district court erred in finding him ineligible for
First Step Act relief. After review, and based on our recent decision in United
States v. Jones, 962 F.3d 1290 (11th Cir. 2020), we vacate the order denying
Lanier’s First Step Act motion and remand for further proceedings.
I. BACKGROUND
A. 2011 Guilty Plea
In a 2011 plea agreement, Lanier pled guilty to two counts of conspiring to
possess with intent to distribute “five (5) grams or more” of crack cocaine,1 in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846 (Counts 1 and 2). 2 In a
written factual proffer signed by Lanier and the government, Lanier stipulated that
Count 1 involved 18.9 grams of crack cocaine, and Count 2 involved 44.5 grams of
crack cocaine. Because the drug quantity involved in each count was between 5
and 50 grams of crack cocaine, Lanier faced a statutory mandatory minimum
1
A superseding information charged Lanier with drug possession offenses, not drug
conspiracy offenses, but Lanier’s plea agreement, the presentence investigation report, and the
sentencing judgment indicate that Lanier was convicted of, and sentenced for, drug conspiracy
offenses.
2
Lanier had also been charged with one count of conspiring to possess with intent to
distribute 50 grams or more of crack cocaine, in violation of §§ 841(a)(1), (b)(1)(A), and 846,
but, in the plea agreement, the government agreed to dismiss it.
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penalty of 5 years in prison and a statutory maximum penalty of 40 years in prison
on each count. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006).
B. Sentencing
According to the presentence investigation report (“PSI”), the Drug
Enforcement Agency, through a confidential informant (“CI”), learned that Lanier
had been facilitating the sale of crack cocaine between his codefendant and buyers.
During one transaction, the CI purchased 18.9 grams of crack cocaine from Lanier.
During another controlled buy, the CI purchased 44.5 grams of crack cocaine from
Lanier. In the final transaction with Lanier, the CI purchased 50.1 grams of crack
cocaine. Accordingly, a total of 113.5 grams of crack cocaine was attributed to
Lanier for the purposes of sentencing.
Because Lanier qualified as a career offender, the PSI calculated his offense
level under the career offender guidelines in U.S.S.G. § 4B1.1, and not the drug
offense guidelines. As a career offender, Lanier’s offense level was 34 because his
statutory maximum penalty for his drug offenses was 40 years’ imprisonment
under 21 U.S.C. § 841(b)(1)(B)(iii). See U.S.S.G. § 4B1.1(b)(B) (2010). After a
three-level reduction for accepting responsibility, Lanier’s total offense level was
31. Even without the career offender provision, Lanier’s criminal history category
was VI by virtue of his 15 criminal history points. His advisory guidelines range
was 188 to 235 months’ imprisonment.
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At the 2011 sentencing hearing, the parties did not dispute the amount of
crack cocaine attributed to Lanier or the PSI’s advisory guidelines calculations.
After adopting the PSI’s advisory guidelines calculations, the district court
imposed two concurrent 188-month sentences, the low end of the advisory range.
C. Lanier’s 2019 Motion for a Sentence Reduction
In February 2019, Lanier filed a pro se motion for a reduced sentence under
§ 404 of the First Step Act. Because Count 1 involved only 18.9 grams of crack
cocaine, Lanier argued that, under the First Step Act, the statutory maximum for
Count 1 was reduced from 40 years to 20 years, and, as a result, his advisory
guidelines range also was reduced. The government agreed that Count 1 involved
only 18.9 grams of crack cocaine. However, the government argued that Lanier
was ineligible for a reduction because Count 2 involved 44.5 grams, which was
more than the 28 grams of crack cocaine that still triggered a 40-year statutory
maximum penalty under the Fair Sentencing Act and § 841(b)(1)(B)(iii). Because
the statutory maximum penalty for Count 2 remained 40 years, Lanier’s career
offender status and overall advisory guidelines range had not changed.
In an order, the district court denied Lanier’s § 404 motion and determined
that he was not eligible for relief because, had Lanier been charged today, he
“likely would have been charged” with conspiring to possess more than 28 grams
of crack cocaine, in light of his plea agreement stipulations. The district court
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further reasoned that “putting Lanier in the same likely position that he would have
been in had the First Step Act been in existence [at the time of his offenses] does
not benefit him as the [c]ourt finds that Count Two would have alleged more than
28 grams. His guidelines would not have changed.”
Later with counsel, Lanier moved for reconsideration of the denial of relief
and argued that the relevant quantity of crack cocaine for determining First Step
Act eligibility should have been the “five (5) grams or more” amount charged in
both Counts of the superseding information, not the actual quantity attributed to
him for the purposes of sentencing. Lanier contended that, under the First Step
Act, his offense level was 29, his criminal history was VI, and his advisory
guidelines range was now 151 to 188 months’ imprisonment. The district court
denied the motion for reconsideration. This appeal followed.3
II. DISCUSSION
A. Statutory Provisions
Under § 3582(c)(1)(B), a district court “may modify an imposed term of
3
For sure, Lanier’s notice of appeal is timely as to the district court’s order denying his
motion for reconsideration of the initial denial of his First Step Act motion. On the other hand, it
is arguable that Lanier’s notice of appeal may not be timely as to the initial denial itself. Yet the
government has not raised any timeliness issues and has briefed only the merits of the appeal as
to the initial denial of the First Step Act motion. Further, subsequent to the district court’s
rulings, this Court has published an opinion deciding what constitutes a “covered offense” under
the First Step Act and other eligibility issues regarding that Act. See Jones, 962 F.3d at 1298-
1302. Both parties have filed supplemental letter briefs as to Jones. Therefore, given all these
developments, this Court addresses the merits of Lanier’s First Step Act motion.
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imprisonment to the extent otherwise expressly permitted by statute or by Rule 35
of the Federal Rules of Criminal Procedure.” 4 18 U.S.C. § 3582(c)(1)(B)
(emphasis added). “And the First Step Act expressly permits district courts to
reduce a previously imposed term of imprisonment” in certain instances for
“covered offenses.” Jones, 962 F.3d at 1297 (addressing the First Step Act of
2018, Pub. L. No. 115-391, 132 Stat. 5194 (“First Step Act”)). It defines “covered
offenses” as “a violation of a Federal criminal statute, the statutory penalties for
which were modified by section 2 and 3 of the Fair Sentencing Act . . . that was
committed before August 3, 2010.” First Step Act § 404(a), 132 Stat. at 5222. “A
[defendant’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. Stated
another way, “a [defendant] has a ‘covered offense’ if his offense triggered a
statutory penalty that has since been modified by the Fair Sentencing Act.” Id.
Specifically, § 404 of the First Step Act “permits a district ‘court that
imposed a sentence for a covered offense’ to ‘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.’” Jones, 962 F.3d at 1297 (quoting the First Step
4
The other two circumstances are: (1) under § 3582(c)(1)(A), when either the Bureau of
Prisons or the defendant has filed a motion and extraordinary and compelling reasons warrant a
reduction or the defendant is at least 70 years old and meets certain other criteria; or (2) under
§ 3582(c)(2), when a defendant has been sentenced to a term of imprisonment based on a
sentencing range that the Sentencing Commission has subsequently lowered pursuant to 28
U.S.C. § 994(o). See 18 U.S.C. § 3582(c).
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Act § 404(b), 132 Stat. at 5222) (alteration in original). “To be eligible for a
reduction, the district court must have ‘imposed a sentence’ on the [defendant] for
a ‘covered offense.’” Id. at 1298 (quoting the First Step Act § 404(a)-(b), 132 Stat.
at 5222). The First Step Act authorizes, but does not require, a sentence reduction
for a covered offense. Id.; see also First Step Act § 404(b), 132 Stat. at 5222.
Further, sections 2 and 3 of the Fair Sentencing Act reduced the penalties for
certain specific crack cocaine offenses. Fair Sentencing Act of 2010, Pub. L. No.
111-220, §§ 2-3, 124 Stat. 2372, 2372. In particular, section 2 increased the
quantity of crack cocaine required to trigger the higher statutory penalties
prescribed by 21 U.S.C. § 841(b)(1)(A)(iii) and (B)(iii). Id. § 2(a), 124 Stat. at
2372; see Dorsey v. United States, 567 U.S. 260, 264, 132 S. Ct. 2321, 2326
(2012); Jones, 962 F.3d at 1297.5 Relevant to Lanier’s appeal, section 2 raised the
threshold drug quantity of crack cocaine from 5 grams to 28 grams for
§ 841(b)(1)(B)(iii)’s 5-year statutory mandatory minimum and 40-year statutory
maximum penalties. Fair Sentencing Act § 2(a)(2). Prior to the First Step Act,
these changes did not apply retroactively to offenders sentenced before its August
3, 2010 effective date. Dorsey, 567 U.S. at 264, 132 S. Ct. at 2326; Jones, 962
5
As explained in Jones, section 2 of the Fair Sentencing Act, the only section applicable
in Lanier’s appeal, “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).”
Jones, 962 F.3d at 1298.
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F.3d at 1297. However, the First Step Act of 2018, in effect, makes section 2 of
the Fair Sentencing Act of 2010 retroactive to Lanier’s 2011 sentencing for his
violations of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), and 846.
Thus, in ruling on a defendant’s First Step Act motion, the district court “is
permitted to reduce a defendant’s sentence only on a ‘covered offense’ and only
‘as if’ sections 2 and 3 of the Fair Sentencing Act were in effect when he
committed the covered offense.” United States v. Denson, 963 F.3d 1080, 1089
(11th Cir. 2020). The district court “is not free to change the defendant’s original
guidelines calculations that are unaffected by sections 2 and 3” or “to reduce the
defendant’s sentence on the covered offense based on changes in the law beyond
those mandated by sections 2 and 3.” Id.
B. Lanier’s claims
On appeal, Lanier argues that he is eligible for relief under § 404 of the First
Step Act because he was convicted of “covered offense[s],” and the district court
should have exercised its discretion rather than finding him ineligible for relief
based on the actual drug quantities involved in the offenses.6
In Jones, this Court held that the district court imposed a sentence for a
“covered offense” if the defendant’s crack cocaine offense triggered the enhanced
6
This Court reviews de novo whether a district court had the authority to modify a term of
imprisonment. Jones, 962 F.3d at 1296.
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penalties in § 841(b)(1)(A)(iii) or (B)(iii). Jones, 962 F.3d at 1300-01. To
determine whether the defendant’s offense triggered those enhanced penalties and
is a “covered offense,” district courts “must consult the record, including the
[defendant’s] charging documents, the jury verdict or guilty plea, the sentencing
record, and the final judgment.” Id. The Jones Court rejected the government’s
argument that, when conducting this inquiry, the district court should consider the
actual quantity of crack cocaine involved in the defendant’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 a § 841 offense—in other
words, whether his offense involved 50 grams or more of crack cocaine, therefore
triggering the penalties in § 841(b)(1)(A)(iii), or between 5 and 50 grams, therefore
triggering the penalties in § 841(b)(1)(B)(iii). Id. Accordingly, under Jones, a
district court may not rely on “its earlier [drug-quantity] findings . . . that were
unrelated to the [defendant’s] statutory penalty to conclude that he did not commit
a covered offense.” Id. at 1301-02.7
7
The elements of the relevant drug offenses are found in § 841. Jones, 962 F.3d at 1301.
Before the Fair Sentencing Act, “the drug-quantity element in section 841(b)(1)(A)(iii) was 50
grams or more of crack cocaine, and the drug-quantity element in section 841(b)(1)(B)(iii) was
five grams or more of crack cocaine.” Id. “[A]ny quantity in the range sufficed and the offense
would have as an element either 50 grams or more or five grams or more of crack cocaine,
respectively.” Id. “The ranges did not create an infinite number of crack-cocaine offenses.” Id.
Thus, for purposes of determining whether a prior offense is a “covered offense” under the First
Step Act, the actual drug quantity involved in that offense is irrelevant as far as the element and
the offense are concerned. Id. However, as explained later, the actual drug quantity is not
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Here, in 2011, Lanier pled guilty to two counts of conspiring to possess with
intent to distribute “five (5) grams or more” of crack cocaine, as charged in the
superseding information. In a factual proffer, he stipulated that the amount of
crack cocaine involved in Count 1 was 18.9 grams, and the amount involved in
Count 2 was 44.5 grams. Because the drug-quantity element in each count was 5
grams or more, Lanier was subject to the statutory penalties in § 841(b)(1)(B)(iii)
of a 5-year statutory mandatory minimum and a 40-year statutory maximum. The
Fair Sentencing Act has now modified and reduced the statutory penalties for drug
offenses involving “5 grams or more” of crack cocaine to no mandatory minimum
prison term (as opposed to 5 years) and a statutory maximum penalty of 20 years
(as opposed to 40 years). Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2006), with 21
U.S.C. § 841(b)(1)(C) (2010). Thus, Lanier’s offenses qualify as “covered
offense[s].” See Jones, 962 F.3d at 1300-01.
We also must address the next step in Jones. The Jones Court explained that
“a [defendant’s] satisfaction of the ‘covered offense’ requirement does not
necessarily mean that a district court can reduce his sentence.” Id. at 1303.
Specifically, the “as if” qualifier in § 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
irrelevant in determining the statutory penalty under the Fair Sentencing Act and in the district
court’s exercise of its discretion under the First Step Act.
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in effect at the time the covered offense was committed,” imposes two limitations
on the district court’s authority to reduce a sentence for a covered offense. Id.
(quotation marks omitted) (alteration in original); see First Step Act § 404(b).
First, the district court cannot reduce a sentence for a covered offense where the
defendant “received the lowest statutory penalty that also would be available to
him under the Fair Sentencing Act.” Jones, 962 F.3d at 1303. “Second, in
determining what a [defendant’s] statutory penalty would be under the Fair
Sentencing Act, the district court is bound by a previous finding of drug quantity
that could have been used to determine the [defendant’s] statutory penalty at the
time of sentencing.” Id.
As further explanation, the Jones Court instructed that, “[i]f the
[defendant’s] sentence would have necessarily remained the same had the Fair
Sentencing Act been in effect, then the district court lacks authority to reduce the
[defendant’s] sentence.” Id. “Any reduction the district court would grant would
not be ‘as if’ the Fair Sentencing Act had been in effect.” Id.
Accordingly, the “as if” qualifier in the First Step Act requires a district
court to determine Lanier’s new penalty ranges under the Fair Sentencing Act. In
doing so, the district court is bound by a previous drug-quantity finding that could
have been used to determine the statutory penalty at the time of sentencing. Under
the Fair Sentencing Act, Lanier’s Count 1 offense and the stipulated 18.9 grams in
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the factual proffer would now result in no statutory mandatory minimum prison
term and a statutory maximum of 20 years. Lanier’s Count 2 offense and the
stipulated 44.5 grams would still result in a statutory mandatory minimum of 5
years and a statutory maximum of 40 years because that drug quantity is over 28
grams and under 280 grams. See Fair Sentencing Act § 2(a), 124 Stat. at 2372. 8
Because Lanier’s two concurrent sentences are 188 months each, he has not
received the lowest statutory penalty that would be available to him under the Fair
Sentencing Act. See Jones, 962 F.3d at 1303.
However, eligibility does not mean entitlement. Although a district court
may have the authority and discretion to reduce a sentence under § 404 of the First
Step Act, it is not required to do so. Id. at 1304. A district court has “wide latitude
to determine whether and how to exercise [its] discretion,” and it may consider the
18 U.S.C. § 3553(a) factors and a previous drug-quantity finding made for the
purposes of relevant conduct, including Lanier’s admitted total crack cocaine
amount of 113.5 grams. Id. at 1301, 1304. And Lanier’s career offender status is
8
Under the Fair Sentencing Act, a drug quantity of less than 28 grams triggers no
statutory mandatory minimum and a statutory maximum of 20 years. 21 U.S.C. § 841(b)(1)(C)
(2010). A drug quantity over 28 grams to 280 grams triggers a statutory mandatory minimum of
5 years and a statutory maximum of 40. Id. § 841(b)(1)(B)(iii) (2010). A drug quantity of more
than 280 grams triggers a statutory mandatory minimum of 10 years and a statutory maximum of
life. Id. § 841 (b)(1)(A)(iii) (2010).
Although Lanier’s Count 2 offense still triggers the same statutory penalties because his
44.5 grams is over 28 grams, his Count 2 offense remains a “covered offense” because the Fair
Sentencing Act modified the statutory penalties for his offense element of 5 grams or more that
applied in 2011.
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not affected by the Fair Sentencing Act because he still has a 40-year statutory
maximum penalty on his drug offense in Count 2. Nonetheless, Lanier’s two drug
convictions are “covered offenses,” and he is eligible to have the district court
consider whether to exercise its discretion to reduce his sentences in consideration
of the statutory ranges that now apply under the Fair Sentencing Act, while
maintaining all other unaffected, original sentencing determinations. See id. at
1304; Denson, 963 F.3d at 1089. Accordingly, we vacate the order denying
Lanier’s First Step Act motion and remand for further proceedings to allow the
district court to exercise its discretion as to Lanier’s request to reduce his sentences
under the First Step Act.
VACATED AND REMANDED.
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