Case: 19-13884 Date Filed: 09/30/2020 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13884
Non-Argument Calendar
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D.C. Docket No. 2:04-cr-14029-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES BRAYE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 30, 2020)
Before GRANT, LUCK, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Charles Braye, a federal prisoner proceeding through his lawyer, appeals the
district court’s denial of his request for a sentence reduction under the First Step
Act of 2018. * No reversible error has been shown; we affirm.
In 2004, a federal grand jury returned an indictment charging Braye with
possession with intent to distribute “five grams or more” of crack cocaine, in
violation of 21 U.S.C. §§ 841(a), (b)(1)(B) (Count 1), and with possession of a
firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count 2). Braye pleaded guilty to both counts pursuant to a written plea
agreement. The plea agreement listed the amount of crack cocaine involved in
Count 1 as “5 grams or more.”
During Braye’s plea hearing, the government described the factual basis for
the plea agreement. Among other things, the government said that the total weight
of crack cocaine seized from Braye was 30.3 grams. Braye agreed with the
government’s factual basis and pleaded guilty.
The Presentence Investigation Report (“PSI”) calculated Braye’s base
offense level as 28 based on a finding that Braye was responsible for 30.3 grams of
crack cocaine. The PSI then applied a career-offender enhancement under
*
First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222.
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U.S.S.G. § 4B1.1(b) and a 3-level reduction for Braye’s acceptance of
responsibility. Based on the resulting total offense level of 31 and a criminal
history category of VI, Braye’s advisory guideline range was calculated as 262 to
327 months’ imprisonment.
The district court sentenced Braye to 262 months for Count 1, plus a
consecutive 60-month sentence for Count 2. We later dismissed Braye’s direct
appeal as barred by the valid appeal waiver contained in Braye’s plea agreement.
In August 2019, Braye filed a counseled motion to reduce his sentence under
section 404 of the First Step Act. Braye sought a sentence of either time-served
(182 months) or 210 months, which he said would be sufficient to achieve the
goals of sentencing under 18 U.S.C. § 3553(a).
The district court denied Braye’s motion in September 2019. The district
court first concluded that Braye was ineligible for a sentence reduction under the
First Step Act. The district court determined that -- based on the amount of crack
cocaine Braye admitted to possessing (30.3 grams) -- Braye’s advisory guidelines
range would remain unchanged. The district court also said that Braye’s admitted
drug quantity would still trigger the same statutory penalties after passage of the
Fair Sentencing Act of 2010.
In the alternative, the district court also denied Braye’s motion for a reduced
sentence for this reason:
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Moreover, even if Defendant is considered eligible for consideration
of a reduction of his sentence, this Court does not believe defendants
who admitted having sufficient quantities of cocaine base to trigger
the statutory penalties now in effect after the passage of the Fair
Sentencing Act should be treated differently than those being charged
under the law currently in effect. Hence, even if Defendant is eligible
under the First Step Act for a sentence reduction, the Court would
exercise its discretion under 18 U.S.C. § 3553(a) to deny Defendant a
reduction of his sentence.
After the district court denied Braye relief under the First Step Act -- and
while this 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. Based on Jones, the government
now concedes that Braye’s Count 1 drug offense constitutes a “covered offense”
under section 404(a) of the First Step Act and, thus, that Braye is eligible for a
reduced sentence. We agree that -- under Jones -- the district court erred in
concluding that Braye was ineligible for relief under the First Step Act.
That Braye is eligible for a reduced sentence under the First Step Act does
not mean, however, that he is entitled to relief. The district courts retain “wide
latitude to determine whether and how to exercise their discretion” in granting a
sentence reduction. Jones, 962 F.3d 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. We review for abuse of discretion the denial of an eligible
movant’s request for a reduced sentence under the First Step Act. Id. at 1296.
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Here, the district court explicitly determined that -- to the extent Braye was
eligible under the First Step Act -- the district court would exercise its discretion to
deny Braye’s motion for a sentence reduction based on the section 3553(a) factors.
In particular, the district court discussed the nature and circumstances of Braye’s
offense and the need to avoid unwarranted sentencing disparities among similarly-
situated defendants.
Braye raised no challenge to the district court’s alternative ruling in his
initial appellate brief. When -- as in this case -- “an appellant fails to challenge
properly on appeal one of the grounds on which the district court based its
judgment, he is deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed.” See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
AFFIRMED.
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