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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-15016
Non-Argument Calendar
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D.C. Docket No. 3:09-cr-00133-MMH-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLVESTER GILLON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 8, 2020)
Before WILLIAM PRYOR, Chief Judge, JORDAN and NEWSOM, Circuit
Judges.
PER CURIAM:
Sylvester Gillon, a federal prisoner serving a sentence of 190 months of
imprisonment, see Fed. R. Crim. P. 35(b), for distributing 50 grams or more of
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crack cocaine, 21 U.S.C. § 841(a)(1), appeals the partial denial of his motion to
reduce his sentence based on the First Step Act of 2018, Pub. L. No. 115-391,
§ 404(b), 132 Stat. 5194, 5222. The district court reduced Gillon’s term of
supervised release, but otherwise denied his request to reduce his prison sentence.
Gillon argues that the district court incorrectly concluded that he was ineligible for
a further reduction. Gillon also argues that the district court violated his right to
due process by denying his motion without holding a hearing in his presence, but
that argument is foreclosed by precedent, United States v. Denson, 963 F.3d 1080
(11th Cir. 2020). Because we cannot discern whether the district court understood
its authority to reduce Gillon’s sentence, see United States v. Jones, 962 F.3d 1290
(11th Cir. 2020), we vacate the order denying Gillon’s motion and remand for
further proceedings.
In August 2009, Gillon pleaded guilty to distributing crack cocaine in
exchange for the dismissal of two additional drug charges. Gillon admitted that,
while on supervised release for another drug crime, he sold a confidential
informant 104.8 grams of crack cocaine. Because Gillon was a career offender, his
presentence investigation report increased his base offense level from 30, United
States Sentencing Guidelines Manual § 2D1.1 & cmt. n.10(D)(i) (Nov. 2008), to
level 37, id. 4B1.1, and increased his criminal history score from V to VI, see id.
The presentence report applied a three-level reduction for Gillon’s acceptance of
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responsibility, id. § 3E1.1, which resulted in an adjusted offense level of 34 and an
advisory guideline range of 262 to 327 months of imprisonment. Gillon’s
presentence report also stated that he had a statutory sentencing range of 20 years
to life imprisonment, 21 U.S.C. § 841(b)(1)(A), and a statutory mandatory-
minimum term of supervised release of ten years, id.; U.S.S.G. § 5D1.2(b). At
sentencing, the district court determined that Gillon’s sentencing range was
“unnecessarily high” because he was a career offender and sentenced him to 20
years of imprisonment and ten years of supervised release.
In 2014, the district court granted a motion to reduce Gillon’s sentence. Fed.
R. Crim. P. 35(b). The district court reduced Gillon’s offense level by two levels,
which resulted in a revised advisory guideline range of 210 to 262 months of
imprisonment, and varied 20 months below the low end of that range to sentence
him to 190 months of imprisonment. See 18 U.S.C. § 3553(a), (e). The district
court mentioned that, had the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372, been in effect when it sentenced Gillon, he would have faced the
same advisory guideline range and a statutory mandatory-minimum sentence of ten
years of imprisonment.
In December 2018, Gillon moved pro se to reduce his prison sentence and
his term of supervised release based on the First Step Act. See Pub. L. No. 115-
391, § 404(b). A probation officer advised the district court that it had discretion
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under the First Step Act, which made retroactive the statutory penalties for covered
offenses under the Fair Sentencing Act, to reduce Gillon’s term of supervised
release from ten to eight years. The probation officer also reported that the
retroactive application of the Fair Sentencing Act affected Gillon’s sentence and
that, because there was no change in Gillon’s advisory guideline range and he
previously had his sentence reduced after consideration of the purposes for
sentencing, 18 U.S.C. § 3553(a), “a comparable downward departure and variance
would result in the same term of imprisonment.”
The government did not dispute that Gillon was eligible for relief under the
First Step Act. Gillon, through appointed counsel, amended his motion and
requested that the district court reduce his term of supervised release from ten
years to eight years. The government did not oppose that request. Gillon also
requested that the district court further reduce his prison sentence to time served or,
in the alternative, that it hold a hearing during which he could address what
sentence was appropriate in the light of his post-sentencing rehabilitation and other
relevant factors. But the government responded that the district court should
exercise its discretion to deny Gillon a further reduction of his prison sentence. The
government argued that the First Step Act did not change Gillon’s advisory
guideline range or any of the factors considered when the district court reduced his
sentence to 190 months of imprisonment and that his sentence was not based on
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the statutory mandatory-minimum penalty reduced by the Fair Sentencing Act, so
the reduction did not establish that his sentence was inappropriate.
The district court granted Gillon’s motion in part. The district court granted,
as unopposed, Gillon’s request to reduce his term of supervised release from ten
years to eight years. But the district court denied Gillon’s request to further reduce
his prison sentence on the grounds that “the United States argues” and the
probation officer “conclu[des]” that Gillon’s “guidelines are not affected by
application of the reduced penalties set forth in the Fair Sentencing Act and . . .
[his] term of imprisonment is already below the applicable guidelines range.”
We review de novo whether the district court has the authority to modify a
movant’s sentence under the First Step Act. Jones, 962 F.3d at 1296. We review
the denial of an eligible movant’s request for relief for abuse of discretion. Id.
Gillon is eligible for a reduction of his prison sentence. The First Step Act
made retroactive the statutory penalties for a “covered offense” under the Fair
Sentencing Act. First Step Act § 404. A movant is convicted of a “covered
offense” if he was convicted of a crack-cocaine offense that triggered the penalties
in section 841(b)(1)(A)(iii) or (B)(iii), Jones, 962 F.3d at 1301, and “if section two
or three of the Fair Sentencing Act modified its statutory penalties,” id. at 1298.
Gillon admitted that he sold 104.8 grams of crack cocaine, which triggered the
statutory penalties in section 841(b)(1)(A) and subjected him to a statutory
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mandatory-minimum sentence of 20 years of imprisonment. Later, section 2 of the
Fair Sentencing Act increased the quantity of crack cocaine necessary to trigger the
statutory penalty from 50 grams to 280 grams and reduced the mandatory-
minimum sentence from 20 years to 10 years of imprisonment. Fair Sentencing Act
§ 2(a)(1); 21 U.S.C. § 841(b)(1)(A)(iii); see Jones, 962 F.3d at 1298. Gillon’s
conviction for distributing 50 grams or more of crack cocaine is a covered offense.
The First Step Act permitted the district court to reduce Gillon’s prison
sentence. “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.’” Jones, 962
F.3d at 1303 (quoting First Step Act § 404(b)). Because Gillon’s sentence of 190
months of imprisonment exceeded the statutory mandatory-minimum sentence of
10 years of imprisonment provided in the Fair Sentencing Act, the district court
had the authority to reduce his sentence under the First Step Act.
“A district court abuses its discretion if it applies an incorrect legal standard,
follows improper procedures in making the determination, or makes findings of
fact that are clearly erroneous.” United States v. Khan, 794 F.3d 1288, 1293 (11th
Cir. 2015) (internal quotation marks omitted). A district court “may,” First Step
Act § 404(b), but is not “require[d] . . . to reduce [the] sentence,” id. § 404(c), of an
eligible movant. “In exercising [its] discretion, [the district court] may consider all
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the relevant factors, including the statutory sentencing factors, 18 U.S.C.
§ 3553(a).” Jones, 962 F.3d at 1304.
We cannot discern from the order the district court entered why it denied
Gillon a further reduction of his prison sentence. The government and the
probation officer stated that Gillon did not deserve a further reduction because the
district court previously had determined that the statutory sentencing factors
required a sentence of 190 months of imprisonment, see 18 U.S.C. § 3553, and the
First Step Act did not change Gillon’s advisory guideline range or the application
of the sentencing factors. But the order reads as though the district court might
have thought it lacked the authority to reduce Gillon’s sentence. See Jones, 962
F.3d at 1303. The district court stated that it was denying Gillon a further reduction
because the Fair Sentencing Act did not affect his guideline range and his sentence
was already below the advisory guideline range.
Jones makes clear that, when the record is ambiguous as to whether the
district court understood its authority under the First Step Act, we must vacate the
order denying relief and remand for further proceedings. 962 F.3d at 1305. To be
sure, the district court might have correctly understood and exercised its discretion
to deny Gillon’s motion, but it might have incorrectly concluded that it lacked the
authority to reduce Gillon’s sentence. See id. Because the record is ambiguous, we
vacate the order denying Gillon’s motion and remand for further consideration.
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We AFFIRM the denial of Gillon’s motion for a hearing. But we VACATE
the order that denied Gillon’s motion to further reduce his prison sentence and
REMAND for further proceedings.
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