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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10482
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-20194-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
TARAHRICK TERRY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 22, 2020)
Before WILSON, ROSENBAUM and MARCUS, Circuit Judges.
PER CURIAM:
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Tarahrick Terry appeals the district court’s denial of his motion for a sentence
reduction under Section 404 of the First Step Act, Pub. L. No. 115-391, 132 Stat.
5194 (“First Step Act”). He argues that he is eligible for a reduction because the
Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, raised the weight
ceiling of 18 U.S.C. § 841(b)(1)(C) to 28 grams of cocaine base from 5 grams, and
thus, modified that section to be a covered offense. After thorough review, we
affirm.
We review for abuse of discretion a district court’s ruling on an eligible
movant’s request for a reduced sentence under the First Step Act. United States v.
Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). However, where the issue presented
involves a legal question, like a question of statutory interpretation, our review is de
novo. Id.; United States v. Pringle, 350 F.3d 1172, 1178-79 (11th Cir. 2003). While
district courts lack the inherent authority to modify a term of imprisonment unless,
for example, a statute expressly permits them to do so, 18 U.S.C. § 3582(c)(1)(B),
the First Step Act expressly allows them to reduce a previously imposed term of
imprisonment in certain situations. Jones, 962 F.3d at 1297.
In 2010, before the First Step Act, Congress enacted the Fair Sentencing Act,
which amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the sentencing disparity
between crack and powder cocaine. Fair Sentencing Act; see Dorsey v. United
States, 567 U.S. 260, 268–69 (2012) (detailing the history that led to enactment of
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the Fair Sentencing Act, including the Sentencing Commission’s criticisms that the
disparity between crack cocaine and powder cocaine offenses was disproportional
and reflected race-based differences). 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). These amendments were not made retroactive
to defendants who were sentenced before the enactment of the Fair Sentencing Act.
United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). Further, the Fair
Sentencing Act did not expressly make any changes to § 841(b)(1)(C), which
provides for a term of imprisonment of not more than 20 years, or 30 years if there
is a prior felony drug conviction, for cases involving quantities of crack cocaine that
do not fall within § 841(b)(1)(A) or (B). See Fair Sentencing Act § 2(a); 21 U.S.C.
§ 841(b)(1)(C).
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 § 404. 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.” The statute defines “covered offense” as “a violation of a Federal
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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 statute makes clear that “[n]othing in this section shall be construed to
require a court to reduce any sentence pursuant to this section.” Id. § 404(c).
In Jones, we interpreted the First Step Act’s definition of a “covered offense,”
and concluded that the phrase “the statutory penalties for which were modified by
section 2 or 3 of the Fair Sentencing Act” modifies the term “violation of a Federal
criminal statute.” 962 F.3d 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. This means that a movant
has a “covered offense” if he was sentenced for an offense that triggered one of the
statutory penalties “provided in subsections 841(b)(1)(A)(iii) and (B)(iii).” Id. We
added that “[t]hose provisions . . . are the only provisions [in § 841(a)] that the Fair
Sentencing Act modified.” Id. at 1300.
We instructed that when the district court is assessing whether an offense
triggered the penalties in § 841(b)(1)(A)(iii) or (B)(iii) and, therefore, was a
“covered offense,” the 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. We rejected the government’s argument that, when
conducting this inquiry, the district court should consider the actual quantity of crack
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cocaine involved in the movant’s violation. Id. at 1301. However, we recognized
that a judge’s actual drug quantity finding remains relevant to the extent the judge’s
finding triggered a higher statutory penalty. Id. at 1302. Moreover, the district court
should consider only whether the quantity of crack cocaine satisfied the specific drug
quantity elements in § 841 -- in other words, whether his offense involved 50 grams
or more of crack cocaine, therefore triggering § 841(b)(1)(A)(iii), or between 5 and
50 grams, therefore triggering § 841(b)(1)(B)(iii). Id. at 1301.
Here, the district court did not err by concluding that Terry did not commit a
“covered offense,” and, thus, was not eligible for relief under the First Step Act. As
the record reflects, Terry pled guilty to one count of possession with intent to
distribute a substance containing a “detectable” amount of cocaine base (which the
district court found at sentencing to be 3.9 grams of cocaine base), thus triggering
the penalties found in § 841(b)(1)(C). Based on Terry’s prior convictions, the
statutory term of imprisonment for this count was 0 to 30 years’ imprisonment, see
21 U.S.C. §§ 841(b)(1)(C), and the district court sentenced him to 188 months’
imprisonment with 6 years’ supervised release. The Fair Sentencing Act did not
expressly amend § 841(b)(1)(C); as Jones made clear, §§ 841(b)(1)(A) and
841(b)(1)(B) were the only provisions modified. 962 F.3d at 1300. Accordingly,
Terry’s offense under § 841(b)(1)(C) is not a “covered offense,” and we affirm.
AFFIRMED.
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