USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11257
Non-Argument Calendar
________________________
D.C. Docket No. 5:94-cr-00002-WTM-BWC-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY LEE INGRAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(October 14, 2020)
Before GRANT, LUCK, and EDMONDSON, Circuit Judges.
USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 2 of 9
PER CURIAM:
Bobby Lee Ingram, a federal prisoner now proceeding through appellate
counsel, 1 appeals the district court’s denial of his motion for a sentence reduction
under section 404 of the First Step Act of 2018.2 Reversible error has been shown;
we affirm in part and vacate in part the district court’s order and remand for further
proceedings.
In 1995, a jury found Ingram guilty of conspiracy to possess with intent to
distribute cocaine and crack cocaine, 3 in violation of 21 U.S.C. § 846 (Count 1),
and 5 counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(Counts 6, 8, 9, 10, and 14).
The Presentence Investigation Report (“PSI”) calculated Ingram’s base
offense level as 38. This determination was based in part on a finding that Ingram
was responsible for 4,167 grams of crack cocaine. The PSI also classified Ingram
1
Ingram was pro se when he initiated this appeal and when he filed his opening appellate brief.
Ingram later retained a lawyer and filed a counseled reply brief. We construe liberally Ingram’s
pro se pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
2
First Step Act of 2018, Pub. L. 115-391, § 404(b), 132 Stat. 5194, 5222.
3
Although Ingram was charged with an offense involving both powdered and crack cocaine, the
sentencing court’s drug quantity finding evidences that Ingram was sentenced only for a crack
cocaine offense.
2
USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 3 of 9
as a career offender. According to the PSI, Ingram was subject to these statutory
penalties: (1) a mandatory minimum sentence of life imprisonment for Count 1,
pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851; (2) a maximum sentence of 30
years for Counts 6, 8, 9, and 10, pursuant to sections 841(b)(1)(C) and 851; and (3)
a sentence between 10 years and life imprisonment for Count 14, pursuant to
sections 841(b)(1)(B) and 851. Based on a total offense level of 38 and a criminal
history category of VI, Ingram’s advisory guidelines range was calculated as 360
months to life. Because of Ingram’s statutory mandatory sentence of life
imprisonment, however, the guideline range for Count 1 became life imprisonment
under U.S.S.G. § 5G1.1(c)(2).
The district court sentenced Ingram to concurrent sentences of life
imprisonment on Count 1 and 360 months’ imprisonment on each of the remaining
counts. We affirmed Ingram’s convictions and sentences on direct appeal. See
United States v. Ingram, 100 F.3d 971 (11th Cir. 1996) (unpublished table
opinion).
3
USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 4 of 9
In 2019, Ingram filed pro se a motion to reduce his sentence pursuant to
Section 404 of the First Step Act. Ingram requested concurrent sentences of 360
months for Count 1 and 262 months for Counts 6, 8, 9, 10, and 14.4
In March 2019, the district court denied Ingram’s motion using a form order.
In the “Additional Comments” section, the district court said these words:
The defendant is not eligible for a sentence reduction pursuant to the
First Step Act of 2018. The defendant is serving a mandatory life
sentence for committing a federal drug offense involving 280 grams
or more of crack cocaine after two prior convictions for a felony drug
offense became final.
After the district court denied Ingram relief under the First Step Act -- and
while Ingram’s 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. Our decision in Jones
controls this appeal.
We review de novo whether a district court had the authority to modify a
term of imprisonment under the First Step Act. Jones, 962 F.3d at 1296. “We
review for abuse of discretion the denial of an eligible movant’s request for a
reduced sentence under the First Step Act.” Id.
4
On appeal, Ingram challenges only the district court’s denial of a sentence reduction for Counts
1 and 14 and, thus, has abandoned his argument that he is eligible for a reduced sentence for
Counts 6, 8, 9, and 10.
4
USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 5 of 9
The First Step Act “permits district courts to apply retroactively the reduced
statutory penalties for crack-cocaine offenses in the Fair Sentencing Act of 2010 to
movants sentenced before those penalties became effective.” Id. at 1293. 5 Under
section 404(b) of the First Step Act, “a district 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.
at 1297 (quotations and alterations omitted).
To be eligible for a reduction under section 404(b), a movant must have
been sentenced for a “covered offense” as defined in section 404(a). Id. at 1298.
We have said that a movant has committed a “covered offense” if the movant’s
offense triggered the higher statutory penalties for crack-cocaine offenses in 21
U.S.C. § 841(b)(1)(A)(iii) or (B)(iii): penalties that were later modified by the Fair
Sentencing Act. See id.
In determining whether a movant has a “covered offense” under the First
Step Act, the district 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. The pertinent question is whether the movant’s
conduct satisfied the drug-quantity element in sections 841(b)(1)(A)(iii) (50 grams
5
Fair Sentencing Act of 2010, Pub. L. No. 111-220, §§ 2-3, 124 Stat. 2372, 2372.
5
USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 6 of 9
or more of crack cocaine) or 841(b)(1)(B)(iii) (5 grams or more of crack cocaine)
and subjected the movant to the statutory penalties in those subsections. Id. at
1301-02. If so -- and if the offense was committed before 3 August 2010 (the
effective date of the Fair Sentencing Act) -- then the movant’s offense is a
“covered offense,” and the district court may reduce the movant’s sentence “as if”
the applicable provisions of the Fair Sentencing Act “were in effect at the time the
covered offense was committed.” See First Step Act § 404(b); Jones, 962 F.3d at
1301, 1303. The actual quantity of crack cocaine involved in a movant’s offense
beyond the amount triggering the statutory penalty is not pertinent to determining
whether a movant has a “covered offense.” Jones, 962 F.3d at 1301-02.
Here, the PSI provides expressly that Ingram’s convictions for Counts 1 and
14 triggered the higher statutory penalties in section 841(b)(1)(A)(iii) and in
section 841(b)(1)(B)(iii), respectively. Because Ingram’s offenses were committed
before 3 August 2010, Ingram’s offenses qualify as “covered offenses” under the
First Step Act.
That Ingram satisfied the “covered offense” requirement, however, does not
necessarily mean the district court was authorized to reduce his sentences for both
offenses. We have said that the “as if” qualifier in section 404(b) of the First Step
Act imposes two limitations on the district court’s authority to reduce a sentence
6
USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 7 of 9
under the First Step Act. See Jones, 962 F.3d at 1303. First, the district court
cannot reduce a sentence where the movant “received the lowest statutory penalty
that also would be available to him under the Fair Sentencing Act.” Id. “Second,
in determining what a movant’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 movant’s statutory penalty at the time
of sentencing.” Id. In other words, a district court lacks the authority to reduce a
movant’s sentence if the sentence would necessarily remain the same under the
Fair Sentencing Act. See id.
Applying these limitations, the district court did lack authority to reduce
Ingram’s sentence for Count 1. Based on Ingram’s prior felony drug convictions
and the sentencing court’s finding that Ingram was responsible for 4,167 grams of
crack cocaine, Ingram’s sentence of life imprisonment is still the lowest possible
penalty that would be available to him under the Fair Sentencing Act. See 21
U.S.C. § 841(b)(1)(A)(iii) (2010) (providing a mandatory life sentence for offenses
involving 280 grams or more of crack cocaine when a defendant has two prior
felony drug convictions); Jones, 962 F.3d at 1304 (affirming the denial of movant
Jackson’s First Step Act motion because -- based on the sentencing court’s drug-
quantity finding of 287 grams of crack cocaine and Jackson’s prior felony drug
7
USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 8 of 9
convictions -- Jackson was still subject to a life sentence). Contrary to Ingram’s
argument on appeal, the district court was bound by its earlier drug-quantity
finding and was entitled to rely on those judge-found factual findings -- made pre-
Apprendi6 -- that triggered increased statutory penalties. See Jones, 962 F.3d at
1302, 1303-04. Accordingly, we affirm the district court’s determination that
Ingram was ineligible under the First Step Act for a reduced sentence for Count 1.
The district court, however, did have authority to reduce Ingram’s sentence
for Count 14. Although the sentencing court made no specific drug-quantity
finding for Count 14, the sentencing court’s application of the statutory penalties in
section 841(b)(1)(B) indicates that the amount of crack cocaine attributed to
Ingram for Count 14 was between 5 and 49 grams. Applying the statutory
penalties in effect under the Fair Sentencing Act, Ingram would be subject either to
a statutory minimum sentence of 10 years under section 841(b)(1)(B)(iii) (for drug
quantities of at least 28 grams) or to no statutory minimum sentence under section
841(b)(1)(C) (for drug quantities less than 28 grams). Because Ingram’s 360-
month sentence for Count 14 exceeds the lowest statutory penalty available under
the Fair Sentencing Act, Ingram is eligible for a sentence reduction on that count
under the First Step Act.
6
Apprendi v. New Jersey, 530 U.S. 466 (2000).
8
USCA11 Case: 19-11257 Date Filed: 10/14/2020 Page: 9 of 9
Once a movant is deemed eligible for relief under the First Step Act, the
district court still retains “wide latitude” to determine whether and to what extent
to grant a sentence reduction. Id. 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.
When the record is ambiguous about whether the district court understood its
authority to reduce a sentence under the First Step Act, we will vacate the order
and remand for further proceedings. See id. at 1305. Given the language of the
district court’s order denying Ingram a reduced sentence, it seems to us that the
district court based its decision solely on Ingram’s mandatory life sentence for
Count 1. Because we cannot tell whether the district court understood correctly the
scope of its authority under section 404(b) to reduce Ingram’s sentence for Count
14, we vacate in part the order denying Ingram’s motion for a reduced sentence
and remand for further proceedings.
AFFIRMED IN PART, VACATED IN PART, REMANDED.
9