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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14946
Non-Argument Calendar
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D.C. Docket No. 2:06-cr-00099-JES-SPC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE VERNON BROWN,
a.k.a. EB,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 11, 2020)
Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Eddie Brown, a federal prisoner, appeals the district court’s denial of his
motion for a sentence reduction under the First Step Act of 2018, Pub. L. No. 115-
391 § 404, 132 Stat. 5194, 5222. He argues that the district court erred in
determining that he was ineligible for a sentence reduction under the First Step
Act. After review, we vacate and remand for further proceedings in the district
court.
I.
In 2006, a federal grand jury charged Brown with possessing with intent to
distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a).
The indictment stated that Brown was subject to the penalties in § 841(b)(1)(B),
which at the time set a term of five to 40 years’ imprisonment for an offense
involving five grams or more of crack cocaine.
Brown pled guilty to this offense. In the plea agreement, he acknowledged
the elements of the offense to which he was pleading guilty: (1) he “knowingly
and willfully possessed” crack cocaine; (2) he “possessed the substance with the
intent to distribute it”; and (3) the weight of the crack cocaine he possessed was “5
or more grams as charged.” Doc. 30-2 at 2. 1 The plea agreement stated that the
statutory penalty for this crime was five to 40 years’ imprisonment.2 In the factual
1
“Doc.” numbers refer to the district court’s docket entries.
2
The indictment also charged Brown with possessing with intent to distribute an
unspecified amount of cocaine. The government dismissed this count.
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basis section of the plea agreement, Brown admitted that the total quantity of crack
cocaine involved in his offense was 44.6 grams.
Prior to sentencing, a probation officer prepared a presentence investigation
report (“PSR”). Based on the admission in the plea agreement, the PSR found that
Brown’s offense involved 44.6 grams of crack cocaine. Because Brown had two
prior felony convictions for controlled substances offenses, the PSR applied the
Sentencing Guidelines’ career-offender enhancement and calculated Brown’s total
offense level as 31. See U.S.S.G. § 4B1.1. Given Brown’s criminal history
category of VI, the PSR calculated his guidelines range as 188 to 235 months’
imprisonment. The district court sentenced Brown at the low end of the range, to
188 months’ imprisonment.
About three years after Brown was sentenced, Congress passed the Fair
Sentencing Act of 2010 to address disparities in sentences for offenses involving
crack cocaine and powder cocaine. See Pub. L. 111-220, 124 Stat. 2372 (2010);
Kimbrough v. United States, 552 U.S. 85, 95–100 (2007) (setting forth history of
disparities in federal sentencing related to crack and cocaine). The Fair Sentencing
Act increased the quantity of crack cocaine necessary to trigger the highest
statutory penalties from 50 grams to 280 grams, and the quantity of crack cocaine
necessary to trigger intermediate statutory penalties from 5 grams to 28 grams. See
Fair Sentencing Act § 2; 21 U.S.C § 841(b)(1)(A)(iii), (B)(iii). Until recently, the
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Fair Sentencing Act’s reduced penalties applied only to defendants who were
sentenced on or after August 3, 2010, the Fair Sentencing Act’s effective date.
Dorsey v. United States, 567 U.S. 260, 264 (2012).
In 2018, Congress passed the First Step Act, permitting “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.” United States v. Jones, 962 F.3d 1290, 1293 (11th Cir. 2020); see First
Step Act § 404. Section 404 of the First Step Act authorizes a district court “that
imposed a sentence for a covered offense” to reduce a defendant’s sentence. First
Step Act § 404(b). A “covered offense” refers to a “violation of a Federal criminal
statute, the statutory penalties for which were modified by section 2 or 3 of the Fair
Sentencing Act of 2010.” Id. § 404(a). The First Step Act authorizes a district
court to “impose a reduced sentence as if” the Fair Sentencing Act had been “in
effect at the time the covered offense was committed.” Id. § 404(b). 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).
After the First Step Act went into effect, Brown filed a motion for a sentence
reduction in the district court. Brown claimed that he was eligible for a reduction
because the Fair Sentencing Act reduced the statutory penalty for the offense for
which he was convicted, possession with intent to distribute five grams or more of
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crack cocaine. The government opposed the motion, arguing that Brown was not
eligible for a reduction because, based on his stipulation in the plea agreement that
the offense involve 44.6 grams of crack cocaine, he remained subject to the same
statutory penalties.
The district court denied Brown’s motion for a sentence reduction. The
court initially found that Brown was “eligible” for a sentence reduction under the
First Step Act because he was convicted of possession with intent to distribute five
or more grams of crack cocaine, which was a “covered offense.” Doc. 68 at 5–6
(internal quotation marks omitted). But the court went on to say that “in the
exercise of its discretionary authority,” Brown was “not eligible for (i.e., not
entitled to) relief under the First Step Act.” Id. at 6. The court explained that
Brown’s sentence “would not be reduced under the First Step Act” because he
remained a career offender and his offense level remained the same under the
career-offender guideline. Id. And the court emphasized that the amount of crack
cocaine involved in the offense continued to qualify Brown for an enhanced
penalty even after the Fair Sentencing Act increased the triggering amount to 28
grams.
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While this appeal was pending, we issued our decision in Jones, addressing
the meaning and proper application of § 404 of the First Step Act. At our
direction, the parties submitted supplemental briefs addressing the effect of Jones.3
II.
We review de novo whether a district court had the authority to modify a
movant’s term of imprisonment under the First Step Act. Jones, 962 F.3d at 1296. 4
We review a 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.
III.
We previously addressed in Jones when a federal prisoner is eligible for a
reduction of sentence under § 404 of the First Step Act. In Jones, we considered
the appeals of four federal prisoners whose motions for a reduction of sentence
under § 404(b) had been denied in the district courts. See 962 F.3d at 1293. We
explained to be eligible for a reduction under § 404(b) a movant’s conviction had
to be for a “covered offense,” meaning a crack-cocaine offense that triggered the
3
According to Brown, after we issued our decision in Jones, the United States Probation
Office notified the district court that Brown is eligible for a sentence reduction under the First
Step Act.
4
Although district courts lack the inherent authority to modify a term of imprisonment, a
district court may modify a term of imprisonment when a statute expressly permits it to do so.
18 U.S.C. § 3582(c)(1)(B); see Jones, 962 F.3d at 1297. The First Step Act expressly permits a
district court to reduce a previously imposed term of imprisonment in certain circumstances. See
First Step Act § 404(b).
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higher penalties set forth in § 841(b)(1)(A)(iii) or (B)(iii). Id. at 1301. To
determine the offense for which a sentence was imposed, we explained, a district
court should 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 government argued that in deciding whether a defendant committed a
“covered offense,” a district court should consider the actual quantity of crack
cocaine involved in the movant’s violation based on a finding of drug quantity
anywhere in the record, “such as a finding that was necessary for determining only
relevant conduct under the Sentencing Guidelines.” Id. at 1301. We rejected this
argument as inconsistent with the statutory text. Id. Rather, we explained, a
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. We concluded that all four movants in Jones were
sentenced for “covered offenses” because they were sentenced for offenses with
penalties modified by the Fair Sentencing Act. Id. at 1302–03.
Next, we explained that a movant’s satisfaction of the “covered offense”
requirement did not necessarily mean that a district court was authorized to reduce
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his sentence. Id. at 1303. Because § 404(b) of the First Step Act stated 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,” we explained that there
were two additional limitations on a district court’s authority to reduce a sentence.
Id. (emphasis added) (quoting First Step Act § 404(b)). First, the “as-if”
requirement did not permit a district court to “reduc[e] a movant’s sentence if he
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, a district court was bound by a
previous drug-quantity finding that could have been used to determine the
movant’s statutory penalty at the time of sentencing. Id. Applying these
limitations, if a movant’s sentence necessarily would have remained the same had
the Fair Sentencing Act been in effect—that is, if his sentence were equal to the
mandatory statutory 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 benefited him, and the First Step Act would not authorize the
district court to reduce his sentence. Id.
Using this framework, we affirmed the denials of two of the movants’
motions in Jones and vacated and remanded as to the two others because the
district courts had authority to reduce their sentences under the First Step Act, but
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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 that 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 guidelines range. Id. at 1305.
Because it was ambiguous whether the district courts denied two of the motions for
one of those improper reasons, we vacated the denials and remanded for further
consideration. Id.
We conclude, and the government does not dispute, that Brown has a
covered offense for purposes of the First Step Act. He pled guilty to possessing
with intent to distribute five grams or more of crack cocaine, and the Fair
Sentencing Act plainly altered the penalty provision for this offense. See Jones,
962 F.3d at 1303.
But the fact that the Fair Sentencing Act reduced the penalty for Brown’s
offense does not necessarily establish that the district court was authorized to
modify his sentence. Under Jones, we also must consider whether Brown has
already been sentenced “as if” the Fair Sentencing Act had been in effect and look
at whether he already received the lowest statutory penalty available. See id.
The parties disagree about what the lowest statutory penalty would have
been if Brown had been sentenced under the Fair Sentencing Act. Brown argues
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that the relevant drug quantity is 5 grams because this was “[t]he element of the
offense charged in [his] indictment, and admitted at the plea.” Appellant’s Supp.
Br. at 3. Using this drug quantity, Brown’s penalty range under the Fair
Sentencing Act would have been zero to 20 years. See 21 U.S.C. § 841(b)(1)(C)
(2011). The government says that we should use 44.6 grams as the drug amount,
which was the drug quantity that Brown admitted to in the factual basis section of
the plea agreement. Using this drug quantity, Brown’s penalty range under the
Fair Sentencing Act would have been five to 40 years’ imprisonment. See
21 U.S.C. § 841(b)(1)(B) (2011). We need not resolve the parties’ dispute and
decide whether the relevant drug quantity is five grams or 44.6 grams. Under
either approach, Brown is eligible for relief because his current sentence of 188
months’ imprisonment exceeds the lowest statutory penalty available under the
Fair Sentencing Act (either zero years under Brown’s approach or five years under
the government’s). 5
5
In its supplemental brief, the government says that to determine whether Brown was
eligible for a sentence reduction we ask a different question: whether his statutory penalty range
would have remained the same had he been sentenced under the Fair Sentencing Act. The
government misapprehends our discussion of the “as if” requirement in Jones. We did not hold
in Jones that the “as if” requirement meant that a movant was ineligible for relief when his
statutory penalty range did not change. Rather, we explained that the “as if” language in the
First Step Act meant only that a movant was ineligible for a sentence reduction when his
sentence was already “the lowest statutory penalty” available under the Fair Sentencing Act
because his actual sentence “necessarily” would have “remained the same had the Fair
Sentencing Act been in effect” at the time of his original sentencing. Jones, 962 F.3d at 1303.
Here, Brown’s 188-month sentence was not the lowest possible sentence that the district court
could have imposed under the Fair Sentencing Act. Because it is possible that the district court
could have imposed a lower sentence if the Fair Sentencing Act been in effect at the time of his
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Although the “district court had the authority to reduce” Brown’s sentence,
“it was not required to do so.” Jones, 962 F.3d at 1304. When a movant is eligible
for a sentence reduction, a district court has “wide latitude” in deciding whether to
exercise its discretion. Id. A district court may consider the statutory sentencing
factors set forth in 18 U.S.C. § 3553(a) as well as a previous drug-quantity finding
made for sentencing purposes only. Id. at 1301, 1304. But when the record is
ambiguous about whether the district court understood its authority to reduce a
sentence under the First Step Act, we must vacate the district court’s order and
remand for further proceedings. See id. at 1305.
In our view, the record is ambiguous about whether the district court
understood its authority to reduce Brown’s sentence under the First Step Act.
After stating that Brown had a covered offense and was “eligible” for relief, the
district court found that Brown was “not eligible” for relief because the First Step
Act resulted in no lowering of Brown’s advisory guidelines range. Doc. 68 at 6–7.
The district court’s order could be read as saying that the court had no authority to
modify Brown’s sentence because he had already been sentenced at the low end of
the guidelines range, in which case the district court did not properly understand its
authority under the First Step Act. Certainly, another possible reading of the
original sentencing, we cannot say that Brown already has been sentenced “as if” the Fair
Sentencing Act were in effect.
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district court’s order is that it found Brown eligible for relief but declined to
exercise its discretion. But we are not confident that this is the only appropriate
interpretation. Because we cannot tell whether the district court correctly
understood the scope of its authority under § 404(b), we vacate the district court’s
order denying Brown’s motion for a sentence reduction and remand for further
proceedings. See Jones, 962 F.3d at 1305.
VACATED AND REMANDED.
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