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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12783
Non-Argument Calendar
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D.C. Docket No. 8:07-cr-00399-JSM-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORENZO T. WILSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(October 14, 2020)
Before JILL PRYOR, BRASHER and BLACK, Circuit Judges.
PER CURIAM:
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Lorenzo Wilson appeals the district court’s order denying his motion for
relief pursuant to Section 404 of the First Step Act. Wilson and the Government
have jointly filed a motion for summary reversal.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
An appeal is frivolous if it is “without arguable merit either in law or fact.” See
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quotation marks omitted).
We review de novo whether a district court had the authority to modify a
term of imprisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir.
2020). We review the district court’s denial of an eligible movant’s request for a
reduced sentence under the First Step Act for an abuse of discretion. Id. A district
court abuses its discretion when it “applies an incorrect legal standard.” Diveroli v.
United States, 803 F.3d 1258, 1262 (11th Cir. 2015) (quotation marks omitted).
District courts lack the inherent authority to modify a term of imprisonment
but may do so to the extent a statute expressly permits. 18 U.S.C. § 3582(c)(1)(B).
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The First Step Act expressly permits district courts to reduce a previously imposed
term of imprisonment. Jones, 962 F.3d at 1297.
The Fair Sentencing Act, enacted on August 3, 2010, amended 21 U.S.C. §§
841(b)(1) and 960(b) to reduce the sentencing disparity between crack and powder
cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (“Fair
Sentencing Act”); see Dorsey v. United States, 567 U.S. 260, 268-69 (2012)
(detailing the history that led to the enactment of 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). 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 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).
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In 2018, Congress enacted the First Step Act, which made retroactive for
covered offenses the statutory penalties enacted under the Fair Sentencing Act.
See First Step Act, Pub. L. No. 115-391, § 404, 132 Stat. 5194. Under Section
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.” Id. §
404(b). The statute defines “covered offense” as “a violation of a Federal 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
First Step Act further states 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 considered the appeals of four federal prisoners whose motions
for a reduction of sentence pursuant to Section 404(b) were denied in the district
courts. See Jones, 962 F.3d at 1293. First, we held a movant was convicted of a
“covered offense” if he was convicted of a crack-cocaine offense that triggered the
penalties in § 841(b)(1)(A)(iii) or (B)(iii). Id. at 1301. Interpreting the First Step
Act’s definition of a “covered offense,” we concluded the phrase “the statutory
penalties for which were modified by section 2 or 3 of the Fair Sentencing Act”
(the penalties clause) modifies the term “violation of a Federal criminal statute.”
Id. at 1298 (quotation marks and emphasis omitted); see First Step Act § 404(a).
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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.
Because section two of the Fair Sentencing Act “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),” a movant has a covered
offense if he was sentenced for an offense that triggered one of those statutory
penalties. Id.
District courts must consult the record, including the movant’s charging
document, the jury verdict or guilty plea, the sentencing record, and the final
judgment, to determine whether the movant’s offense triggered the penalties in
§ 841(b)(1)(A)(iii) or (B)(iii) and, therefore, was a covered offense. 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 cocaine involved in
the movant’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 § 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.
Accordingly, any actual amount of drugs involved in the movant’s offense
beyond the amount related to his statutory penalty is not relevant to whether he
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was convicted of a covered offense. See id. at 1301-02. However, a judge’s actual
drug-quantity finding remains relevant to the extent that the judge’s finding
triggered a higher statutory penalty. Id. at 1302. Thus, a movant sentenced prior
to Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the Supreme Court held
that facts, such as a drug quantity, that increase a defendant’s statutory maximum
must be made by a jury, cannot “redefine his offense” to one triggering a lower
statutory penalty simply because the district court, not a jury, made the drug-
quantity finding relevant to his statutory penalty. See id. Applying this inquiry to
the four movants in Jones, we concluded all four were sentenced for covered
offenses because they were all sentenced for offenses whose penalties were
modified by the Fair Sentencing Act. Id. at 1302-03.
Next, we explained a movant’s satisfaction of the “covered offense”
requirement does not necessarily mean the district court is authorized to reduce his
sentence. Id. at 1303. Specifically, the “as if” qualifier in Section 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 in effect at the time the covered offense was
committed,” imposes two limitations on the district court’s authority. Id.
(quotation marks omitted) (alteration in original); see First Step Act § 404(b).
First, the district court cannot reduce a sentence where the movant received the
lowest statutory penalty that would also be available to him under the Fair
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Sentencing Act. Jones, 962 F.3d at 1303. Second, in determining what a movant’s
statutory penalty would have been under the Fair Sentencing Act, the district court
is bound by a previous drug-quantity finding that was used to determine the
movant’s statutory penalty at the time of sentencing. Id. Moreover, the
Constitution does not prohibit district courts from relying on judge-found facts that
triggered statutory penalties prior to Apprendi. See id. at 1303-04.
Applying these limitations, we held that if a movant’s sentence necessarily
would have remained the same had the Fair Sentencing Act been in effect—in
other words, if his sentence was equal to the mandatory minimum imposed by the
Fair Sentencing Act for the quantity of crack cocaine that triggered his statutory
penalty—then the Fair Sentencing Act would not have benefitted him, and the First
Step Act does not authorize the district court to reduce his sentence. Id. at 1303.
Applying this “as-if” framework, we affirmed the denials of two of the
movants’ motions, but vacated and remanded as to the others because the district
courts had authority to reduce their sentences under the First Step Act, but it was
unclear whether the courts had recognized that authority. Id. at 1304-05. We held
that it was error for the district courts to conclude a movant was ineligible based on
(1) a higher drug-quantity finding that was made for sentencing—not statutory—
purposes, (2) a movant’s career-offender status, or (3) a movant’s sentence being at
the bottom of the guideline range. Id. at 1305. Because it was ambiguous whether
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the district courts denied their motions for one of those reasons, we vacated and
remanded the denials for further consideration. Id.
Finally, we noted that, although a district court may have the authority to
reduce a sentence under Section 404 of the First Step Act, it is not required to do
so. Id. at 1304. We held a district court has wide latitude to determine whether
and how to exercise its discretion, and that it may consider the 18 U.S.C. § 3553(a)
factors and a previous drug-quantity finding made for the purposes of relevant
conduct. Id. at 1301, 1304.
Here, there is no substantial question the district court erred in finding
Wilson was not eligible for relief under the First Step Act. The district court
incorrectly relied on the amount of cocaine base determined for sentencing
purposes instead of the amount reflected in the indictment, which is contrary to
Jones, where we held the actual amount of drugs involved in the movant’s offense
beyond the amount related to his statutory penalty is not relevant to whether he
was convicted of a covered offense. See Jones, 962 F.3d at 1301-02. Because the
amount related to Wilson’s statutory penalty was 5 grams or more of cocaine base,
which was modified by the Fair Sentencing Act, and not the 29.7 grams of cocaine
base used for sentencing purposes, Wilson was eligible for First Step Act relief.
Id. at 1298, 1301-02.
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Therefore, because there is no substantial question that the district court
erred in utilizing the amount of drugs found for sentencing purposes to find that
Wilson was not eligible for relief under Section 404 of the First Step Act, we
GRANT the parties’ joint motion for summary reversal. See Groendyke Transp.,
Inc., 406 F.2d at 1162.
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