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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12405
Non-Argument Calendar
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D.C. Docket No. 1:99-cr-00006-AW-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS LEE BANKS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 4, 2021)
Before JORDAN, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Demetrius Banks, a federal prisoner who in 1999 was convicted of various
narcotics and firearm offenses, appeals the district court’s discretionary denial of his
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motion for a sentence reduction under the First Step Act. For reasons discussed
below, we conclude that the district court did not abuse its discretion in declining to
reduce Mr. Banks’ sentence. We therefore affirm.
I
In 1999, Mr. Banks pled guilty as charged to four counts of distribution of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C); one count of
distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(iii); one count of possession of a firearm by a convicted felon, in violation
of 18 U.S.C. §§ 922(g) and 924(e); and two counts of using, carrying, and possessing
a firearm during a drug trafficking crime, in violation 18 U.S.C. § 924(c). Neither
the indictment nor the judgment referenced any quantity of crack cocaine, but the
presentence investigation report held Mr. Banks responsible for 13.3 grams of crack
cocaine. The district court sentenced him to (1) concurrent 188-month terms of
imprisonment on the § 841 charges; (2) a 60-month consecutive term of
imprisonment on one of the § 924(c) charges; and (3) a consecutive 300-month term
of imprisonment on the other § 924(c) charge. This resulted in a 548-month prison
sentence.
Since Mr. Banks was sentenced, Congress has made substantial changes to
the laws governing statutory penalties for crack-cocaine offenses. In 2018, Congress
enacted the First Step Act, which allows district courts to retroactively apply reduced
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statutory penalties codified in the 2010 Fair Sentencing Act. See First Step Act, Pub.
L. No. 115-391, § 404, 132 Stat. 5194. The Fair Sentencing Act, in turn, had
amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the sentencing disparities
between crack and powder cocaine. See Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372 (“Fair Sentencing Act”). 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. See Fair Sentencing Act
§ 2(a)(1)-(2). See also 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii).
Section § 404(b) of the First Step Act authorizes district courts to impose a
reduced sentence for anyone with a “covered offense”—that is, an offense whose
penalty was subsequently modified by Section 2 or 3 of the Fair Sentencing Act. See
First Step Act, §§ 404(a)-(b). But Congress has also made clear that courts are not
“require[d] . . . to reduce any sentence pursuant to this section.” First Step Act, §
404(c).
In February of 2019, the district court appointed defense counsel and ordered
briefing as to whether Mr. Banks was eligible for relief under the newly enacted First
Step Act. The government conceded that Mr. Banks was eligible for relief as to
Count 3 (distribution of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(iii)) but argued that, based on his extensive prior record and the nature of
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his prior crimes, the district court should not exercise its discretion to reduce the
sentence.
The district court agreed with the government and denied Mr. Banks’ motion
for relief under the First Step Act. It reasoned that Mr. Banks’ extensive criminal
history counseled against a sentence reduction. It also noted as an “aside” that
imposing a reduced sentence would not afford Mr. Banks any practical benefit
because his sentence on Count 3 was concurrent with other sentences ineligible for
relief. Even if relief under the First Step Act would reduce the total sentence, the
district court said, it would not grant such relief due to Mr. Banks’ criminal history.
That criminal history includes convictions for grand theft, robbery using a deadly
weapon, burglaries, lewd and lascivious assault on a seven-year-old girl, sexual
battery of a juvenile, and grand theft auto.
II
The parties agree that the district court was authorized to reduce Mr. Banks’
sentence on Count 3 because the crack-cocaine offense in that charge is a “covered
offense” subject to reduction under the First Step Act. See First Step Act, § 404(a).
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, keeping in mind that
“[d]istrict courts have wide latitude to determine whether and how to exercise their
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discretion in this context.” United States v. Jones, 962 F.3d 1290, 1296, 1304 (11th
Cir. 2020).
In exercising their discretion, district courts “may consider all the relevant
factors, including the statutory sentencing factors.” Id. (citing 18 U.S.C. §3553(a),
which lists, among other factors, “the history and characteristics of the defendant”
and “the need . . . to protect the public from further crimes of the defendant”).
We discern no abuse of discretion on this record given Mr. Banks’ extensive
criminal history, the details of which are worse than the underlying convictions. His
grand theft auto conviction, for example, arose from an incident in which he
allegedly solicited a ride from a juvenile and raped her at knifepoint. He also had
an aggravated battery charge—stemming from an incident in which he fractured
someone’s jaw—that was nolle prossed upon his completion of a deferred
prosecution agreement. These incidents, combined with the lewd and lascivious
assault on a seven-year-old child, and the other convictions, provided ample grounds
for the district court to decline to exercise its discretion to reduce Mr. Banks’
sentence on Count 3.
Because we conclude that the district court did not abuse its discretion in
declining to modify Mr. Banks’ sentence on Count 3, we need not reach Mr. Banks’
argument that “upon reducing that sentence the court had discretion to consider
reducing Mr. Banks’ other sentences as well.” The district court made clear that it
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based its decision on Mr. Banks’ criminal history, and not on the fact that reducing
his sentence on Count 3 would afford him no practical relief.
III
We affirm the district court’s denial of relief to Mr. Banks under the First Step
Act.
AFFIRMED.
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