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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-10280
Non-Argument Calendar
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D.C. Docket No. 1:05-cr-00033-AW-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK KIRKSEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(July 12, 2021)
Before JORDAN, BRASHER and MARCUS, Circuit Judges.
PER CURIAM:
Mark Kirksey, a counseled federal prisoner, appeals the district court’s denial
of his motion to reduce sentence under § 404 of the First Step Act of 2018, Pub. L.
No. 115-391, 132 Stat. 5194 (“First Step Act”). On appeal, Kirksey argues that: (1)
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he is eligible for relief under the First Step Act because he was convicted only of a
crack-cocaine conspiracy, not a conspiracy to distribute powder and crack cocaine;
(2) alternatively, even if he was convicted of a conspiracy to distribute powder and
crack cocaine, United States v. Taylor, 982 F.3d 1295 (11th Cir. 2020), held that a
multi-object drug conspiracy was a covered offense under the First Step Act, and his
case is indistinguishable from Taylor; and (3) his conviction for a covered offense
entitles him to resentencing de novo. After careful review, we affirm.
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).
While district courts generally lack the inherent authority to modify a term of
imprisonment unless, inter alia, a statute expressly permits them to do so, 18 U.S.C.
§ 3582(c)(1)(B), the First Step Act expressly allows them to reduce a previously
imposed term of imprisonment in certain circumstances. Jones, 962 F.3d at 1297.
In 2010, before the First Step Act, Congress enacted the Fair Sentencing Act,
which 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 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-
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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).
In 2018, Congress enacted the First Step Act, which made retroactive the
statutory penalties for covered offenses enacted under the Fair Sentencing Act. See
First Step Act § 404.1 Under § 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
1
In changing the statutory sentencing scheme for crack-cocaine quantities, the Fair Sentencing
Act made other changes to the law that are relevant to defendants like Kirksey, who have prior
convictions and were sentenced before the Fair Sentencing Act was enacted. For example,
before the Fair Sentencing Act, the statute required a mandatory sentence of life imprisonment
for offenses involving 50 grams or more of crack cocaine after 2 or more prior convictions for a
felony drug offense. 21 U.S.C. § 841(b)(1)(A)(iii) (effective Apr. 15, 2009, to Aug. 2, 2010).
After the Fair Sentencing Act, the statute required a mandatory sentence of life imprisonment for
offenses involving 280 grams or more of crack cocaine after 2 or more prior convictions for a
felony drug offense. Id. (effective Aug. 3, 2010, to Dec. 20, 2018). For offenses involving 28
grams or more of crack cocaine, under the Fair Sentencing Act, a mandatory minimum of 10
years in prison and a maximum of life in prison is required after a prior conviction for a felony
drug. Id. § 841(b)(1)(B)(iii) (effective Aug. 3, 2010, to Dec. 20, 2018). Both before and after
the Fair Sentencing Act, there were no additional enhanced penalties for offenders with at least 2
prior felony drug convictions. Id. (effective Apr. 15, 2009, to Aug. 3, 2010); id. (effective Aug.
3, 2010, to Dec. 20, 2018). Also, both before and after the Fair Sentencing Act, a mandatory
sentence of life imprisonment is required for offenses involving 5 kilograms or more of powder
cocaine after 2 or more prior convictions for a felony drug offense. Id. § 841(b)(1)(A)(ii)
(effective Apr. 15, 2009, to Aug. 2, 2010); id. (effective Aug. 3, 2010, to Dec. 20, 2018).
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and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense
was committed.” 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 statute makes clear that “[n]othing in this section shall be construed to
require a court to reduce any sentence pursuant to this section.” Id. § 404(c).2
In Jones, we considered the appeals of four federal prisoners whose motions
for a reduction of sentence pursuant to § 404(b) were denied in the district courts.
962 F.3d at 1293. We began by holding that 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. We instructed that when the district
court is assessing whether an offense triggered the penalties in § 841(b)(1)(A)(iii) or
(B)(iii) and, therefore, was a “covered offense,” the court must consult the record,
including the movant’s charging document, the jury verdict or guilty plea, the
2
The First Step Act made other changes to the law as well, but they are not applicable here. For
example, it amended § 841(b)(1)(A) by changing the mandatory penalties it imposed for repeat
offenders and altering the type of offenses triggering those penalties. First Step Act § 401.
Section 841(b)(1)(A) previously said that a prior conviction for a “felony drug offense” would
trigger mandatory penalties, but § 401(a) of the First Step Act changed the prior-conviction
language to a “serious drug felony or serious violent felony.” Id. § 401(a). Section 401(a) of the
First Step Act also changed the mandatory-minimum sentence for defendants with 2 or more of
these kinds of prior convictions from life imprisonment to 25 years. Id. Notably, § 401’s
provisions apply to any offense committed before the date of enactment of the act (December 21,
2018), but only if a sentence for the offense had not been imposed as of that date. Id. § 401(c).
Since Kirksey was sentenced in September 2007, these provisions do not apply to him.
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sentencing record, and the final judgment. 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. However, we recognized that a judge’s actual drug quantity finding remains
relevant to the extent the judge’s finding triggered a higher statutory penalty. Id. at
1302. Applying this inquiry to the four movants in Jones, we concluded that all four
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 does not necessarily mean that the district court is authorized to reduce
his sentence. Id. at 1303. Specifically, § 404(b) of the First Step Act -- providing
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. (quoting First Step Act § 404(b); emphasis
added). One, the district court cannot reduce a sentence if the movant received the
lowest statutory penalty that would also be available to him under the Fair
Sentencing Act. Id. Two, in assessing the movant’s statutory penalty under the Fair
Sentencing Act, the district court is bound by the previous drug-quantity finding that
was used to determine the movant’s statutory penalty at the time of sentencing. Id.
Applying these limitations, we held that if a movant’s sentence necessarily would
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have remained the same had the Fair Sentencing Act been in effect -- that is, if his
sentence was 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
does not authorize the district court to reduce his sentence. Id. at 1303.
Using this framework, we affirmed the denials of two movants’ motions in
Jones, but vacated and remanded the others for further consideration because it was
unclear if those district courts had recognized their authority under the First Step Act
to reduce the sentences. Id. at 1304–05. We held that a movant was not ineligible
based on (1) a higher drug quantity finding 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. Since we could not tell if the two
courts relied on these improper reasons, we vacated and remanded those cases. Id.
Finally, we noted that, while a district court may have the authority to reduce
a sentence under § 404 of the First Step Act, it is not required to do so. Id. at 1304.
A district court has wide latitude to decide whether and how to exercise its discretion,
and 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. 3
3
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
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After Jones, we again applied the First Step Act in Taylor, where the
defendant had pleaded guilty to one count of conspiracy to possess with intent to
distribute at least 5 kilograms of powder cocaine and at least 50 grams of crack
cocaine and was sentenced to life in prison based on the then-mandatory guideline
calculations. 982 F.3d at 1297–98. We concluded that the defendant’s dual-drug
conspiracy conviction -- involving both powder and crack cocaine -- constituted a
covered offense under the First Step Act. Id. at 1301.
We explained in Taylor that the statutory penalties for a drug trafficking
offense included all the penalties triggered by every drug quantity element of the
offense, not just the higher tier of penalties triggered by any one drug-quantity
element. Id. at 1300. So, before the Fair Sentencing Act, the drug quantities of
Taylor’s conviction satisfied the drug-quantity elements in § 841(b)(1)(A)(ii) and
(A)(iii), both of which triggered the highest tier of penalties -- a sentence of ten years
to life in prison. Id. at 1301. But after the Fair Sentencing Act, the powder-cocaine
element of Taylor’s conspiracy offense triggered the same ten-to-life penalty, while
the crack-cocaine element triggered a lower category of penalties. Id. This meant,
under the First Step Act’s text, that the statutory penalties for Taylor’s crack-cocaine
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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offense were modified by § 2 of the Fair Sentencing Act, even if he ultimately would
face the same statutory sentencing range due to the other drug-quantity element of
his offense. Id. On this basis, we held that Taylor’s offense was a violation of a
federal criminal statute, the statutory penalties for which were modified by § 2 of
the Fair Sentencing Act, and, thus, was a covered offense. Id. We further held that
since Taylor had not been sentenced to the lowest statutory penalty available to him
under the Fair Sentencing Act, he was “eligible” for a sentence reduction and the
district court could decide on remand if it was warranted. Id. at 1302.
We’ve made clear that the First Step Act does not authorize a district court to
conduct a plenary or de novo resentencing in which it reconsiders sentencing
guideline calculations unaffected by §§ 2 and 3 of the Fair Sentencing Act or to
change the defendant’s sentences on counts that are not covered offenses. United
States v. Denson, 963 F.3d 1080, 1089 (11th Cir. 2020). Under the prior precedent
rule, a prior panel’s holding is binding on all subsequent panels unless the Supreme
Court or this Court sitting en banc overrules it or undermines it to the point of
abrogation. United States v. Johnson, 981 F.3d 1171, 1192 (11th Cir. 2020).
“When a sentence pronounced orally and unambiguously conflicts with the
written order of judgment, the oral pronouncement governs.” United States v. Bates,
213 F.3d 1336, 1340 (11th Cir. 2000). Only when there is an ambiguity in the oral
sentencing, as opposed to a conflict between the oral pronouncement and the written
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judgment, is it proper to look to the written judgment to ascertain the court’s
intentions. United States v. Bonilla, 579 F.3d 1233, 1245 (11th Cir. 2009).
Here, the district court did not err in finding Kirksey ineligible for a sentence
reduction. For starters, while Kirksey has argued that he was convicted only of a
conspiracy involving crack cocaine (also called cocaine base), almost all of the
record, including Kirksey’s charging document, his guilty plea, and the sentencing
record, indicate that he was convicted of a conspiracy involving both powder and
crack cocaine. In the indictment, Kirksey was charged with one count of conspiracy
to manufacture, distribute, and possess with intent to manufacture and distribute
more than 5 kilograms of powder cocaine and more than 50 grams of crack cocaine.
His plea agreement specified his charge as conspiracy to manufacture, distribute,
and possess with the intent to manufacture and distribute controlled substances
involving more than 5 kilograms of a mixture and substance containing cocaine and
more than 50 kilograms of a mixture and substance containing crack cocaine. Then,
at the change-of-plea hearing, the district court recited his charge as a conspiracy
involving both powder cocaine and crack cocaine, to which Kirksey pleaded guilty.
And the government clarified at the hearing that the conspiracy, as it related to
Kirksey, involved powder cocaine that was converted into crack cocaine. Then, at
sentencing, the district court adjudged Kirksey guilty of “conspiracy to manufacture,
distribute and possession with intent to manufacture and distribute more than [5]
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kilograms of a mixture or substance containing cocaine and more than 50 grams of
a mixture and substance containing [crack cocaine],” as charged and to which he had
pleaded guilty, before imposing the statutory mandatory sentence of life
imprisonment. This record makes clear that Kirksey was convicted of a conspiracy
involving both powder and crack cocaine.
It is true that Kirksey’s final judgment -- the only outlier -- cited the statute of
conviction as 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and stated that the nature of
offense was conspiracy involving crack cocaine. However, the final judgment also
cited the five-kilogram threshold for powder cocaine, which suggests that the
sentencing court had the powder-cocaine element of Kirksey’s conspiracy offense
in mind. In any event, because the sentencing court’s oral pronouncement that he
was adjudged guilty of conspiracy involving powder cocaine and crack cocaine, as
charged and to which Kirksey pleaded guilty, was unambiguous, the oral
pronouncement controls over the written judgment. Bates, 213 F.3d at 1340. Thus,
considering the record as a whole, it is clear that the district court treated Kirksey’s
offense as a conspiracy involving both powder and crack cocaine when it imposed a
sentence on Kirksey.
Next, we agree that Kirksey’s dual-drug conviction was a “covered offense”
just like the defendant’s offense in Taylor. As the record reflects, Kirksey was
convicted of a conspiracy offense that included both a crack-cocaine element and
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another drug-quantity element -- in this instance more than five kilograms of powder
cocaine. And, while both drug quantities triggered mandatory life imprisonment
under the statute before the Fair Sentencing Act, the powder-cocaine element of
Kirksey’s conspiracy offense after the Fair Sentencing Act triggered the same
mandatory life penalty, while the crack-cocaine element triggered a lower category
of penalties -- 10 years to life in prison. Thus, the statutory penalties for Kirksey’s
crack-cocaine offense were modified by § 2 of the Fair Sentencing Act, making his
conspiracy offense a “covered offense.” Taylor, 982 F.3d at 1301.
Nevertheless, Kirksey is not eligible for relief under the “as if” clause of § 404
of the First Step Act. Under the statute, Kirksey would still receive a life sentence
because his offense involved five kilograms of powder cocaine and he had two or
more prior felony drug convictions. 21 U.S.C. § 841(b)(1)(A)(ii) (effective Apr. 15,
2009, to Aug. 2, 2010); 21 U.S.C. § 841(b)(1)(A)(ii) (effective Aug. 3, 2010, to Dec.
20, 2018); see also First Step Act § 401(c) (providing that its amendments
concerning prior convictions do not apply to defendants sentenced before December
21, 2018). This means that Kirksey already received the lowest statutory penalty
that also would be available to him under the Fair Sentencing Act, and, as a result,
he is ineligible for relief. First Step Act § 404(b); Jones, 962 F.3d at 1303.
Because of Kirksey’s prior felony drug convictions, his case is distinguishable
from Taylor. In Taylor, the defendant was not subject to a mandatory life sentence
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under the statute based on prior drug convictions. Id. at 1297–98, 1301–02. Rather,
Taylor had been sentenced to 30 years’ imprisonment, and the lowest statutory
penalty available to him had the Fair Sentencing Act been in effect was ten years’
imprisonment -- which means that Taylor had not been sentenced to the same
minimum penalty that would have been available if the Fair Sentencing Act had been
in effect. Id. at 1302. By contrast, Kirksey’s statutory mandatory life sentence,
triggered by his prior drug convictions, was the lowest statutory penalty that would
be available to him under the Fair Sentencing Act, so it necessarily would have been
the same had the Fair Sentencing Act been in effect.
Finally, because Kirksey is not eligible for a sentence reduction, we need not
consider his argument that the district court should have conducted a de novo
resentencing. Regardless, a de novo resentencing is foreclosed by our binding
precedent in Denson. 963 F.3d at 1089; see also Johnson, 981 F.3d at 1192.
Accordingly, the district court did not err in finding that Kirksey was ineligible for
a sentence reduction under § 404 of the First Step Act, and we affirm.
AFFIRMED.
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United States v. Mark Kirksey
Combined Opinion