USCA11 Case: 20-13109 Date Filed: 10/08/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13109
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD JUNIOR WALKER, III,
a.k.a. Zulu,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 1:11-cr-00101-JRH-BKE-1
____________________
USCA11 Case: 20-13109 Date Filed: 10/08/2021 Page: 2 of 7
2 Opinion of the Court 20-13109
Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges.
PER CURIAM:
Clifford Walker III, a federal prisoner proceeding pro se, 1 ap-
peals the district court’s denial of his pro se motion for a reduced
sentence under section 404 of the First Step Act. 2 No reversible
error has been shown; we affirm.
In 2011, Walker pleaded guilty to distributing an unspecified
quantity of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C). According to the Presentence Investigation Report
(“PSI”), the conduct underlying Walker’s conviction involved
Walker’s sale of 4.7 grams of crack cocaine to an FBI informant in
2008.
The PSI calculated Walker’s total offense level as 29 based
on the quantity of drugs involved in Walker’s offense, on Walker’s
designation as a career offender under U.S.S.G. § 4B1.1, and on
1 We read liberally briefs filed by pro se litigants. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008).
2 First Step Act of 2018, Pub. L. 115-391, § 404(b), 132 Stat. 5194, 5222 (2018).
USCA11 Case: 20-13109 Date Filed: 10/08/2021 Page: 3 of 7
20-13109 Opinion of the Court 3
Walker’s acceptance of responsibility. Walker’s total offense level
combined with his criminal-history category of VI resulted in an
advisory guidelines range of 151 to 188 months’ imprisonment.
The sentencing court sentenced Walker to 169 months’ imprison-
ment, followed by 5 years’ supervised release.
In 2020, Walker moved pro se to reduce his sentence pursu-
ant to Section 404 of the First Step Act.
The district court denied Walker’s motion. The district
court determined that the statutory penalty for Walker’s offense of
conviction -- as set forth in 21 U.S.C. § 841(b)(1)(C) -- had not been
modified by the Fair Sentencing Act. As a result, the district court
concluded that Walker was ineligible for a reduced sentence under
the First Step Act.
We review de novo whether a district court had the author-
ity to modify a term of imprisonment under the First Step Act. See
United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). District
courts lack the inherent authority to modify a term of imprison-
ment unless authorized expressly by statute. See 18 U.S.C. §
3582(c)(1)(B).
USCA11 Case: 20-13109 Date Filed: 10/08/2021 Page: 4 of 7
4 Opinion of the Court 20-13109
In 2010, Congress enacted the Fair Sentencing Act to reduce
the sentencing disparity between crack and powder-cocaine of-
fenses. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124
Stat. 2372 (2010). The Fair Sentencing Act increased the quantity
of crack cocaine necessary to trigger the higher mandatory mini-
mum sentences provided in sections 841(b)(1)(A)(iii) and (B)(iii).
See Fair Sentencing Act § 2(a). Important to this appeal, the Fair
Sentencing Act made no express change to the statutory language
in section 841(b)(1)(C). See id. The amended penalties under the
Fair Sentencing Act applied only to defendants sentenced on or af-
ter the Act took effect on 3 August 2010. See Dorsey v. United
States, 567 U.S. 260, 267 (2012).
In 2018, Congress enacted the First Step Act to give district
courts the discretion “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 effec-
tive.” Jones, 962 F.3d at 1293. 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
USCA11 Case: 20-13109 Date Filed: 10/08/2021 Page: 5 of 7
20-13109 Opinion of the Court 5
offense was committed.” Id. at 1297 (quotations and alterations
omitted). To be eligible for a reduction under section 404(b), a mo-
vant must have been sentenced for a “covered offense” as defined
in section 404(a). Id. at 1298.
On appeal, Walker first contends he is eligible for a reduced
sentence because his conviction under section 841(b)(1)(C) consti-
tutes a “covered offense” under the First Step Act. But this argu-
ment has been foreclosed by the Supreme Court’s decision in Terry
v. United States, 141 S. Ct. 1858 (2021).
In Terry -- a decision issued while this appeal was pending -
- the Supreme Court concluded that a violation of 21 U.S.C.
§ 841(b)(1)(C) constitutes no “covered offense” under the First Step
Act. See 141 S. Ct. at 1862-63. The Supreme Court said that a vio-
lation of federal criminal law qualified as a “covered offense” only
if the statutory penalties for that violation had been modified by
the Fair Sentencing Act. Id. at 1862. The penalties for a violation
of section 841(b)(1)(C) remained unchanged after the Fair Sentenc-
ing Act; so, the Supreme Court determined that a violation of sub-
section (C) was no “covered offense” and that a defendant con-
victed under subsection (C) was ineligible for a reduced sentence.
USCA11 Case: 20-13109 Date Filed: 10/08/2021 Page: 6 of 7
6 Opinion of the Court 20-13109
Id. at 1862-63. Like the defendant in Terry, Walker is ineligible for
relief under the First Step Act.
On appeal, Walker also contends that his sentence was based
in part on a judge-made drug-quantity finding in violation of Ap-
prendi and Alleyne: 3 decisions Walker says are applicable in the
context of considering a sentence reduction under the First Step
Act.
In ruling on Walker’s motion for relief under the First Step
Act, the district court simply lacked authority to consider other un-
related challenges to the lawfulness of Walker’s sentence. See
United States v. Taylor, 982 F.3d 1295, 1302 (11th Cir. 2020) (reit-
erating that “the First Step Act does not authorize the district court
to conduct a plenary or de novo resentencing.”). Furthermore, we
have already concluded that the rules announced in Apprendi and
in Alleyne (rules that apply to factfindings that would increase a
defendant’s penalty) are not implicated when a district court deter-
mines what a movant’s statutory penalty would have been under
3 Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570
U.S. 99 (2013).
USCA11 Case: 20-13109 Date Filed: 10/08/2021 Page: 7 of 7
20-13109 Opinion of the Court 7
the Fair Sentencing Act (a determination that can only maintain or
decrease a movant’s penalty). See Jones, 962 F.3d at 1303-04. A
district court ruling on a motion under the First Step Act may thus
rely “on earlier judge-found facts that triggered statutory penalties
that the Fair Sentencing Act later modified.” Id. at 1303.
The district court committed no error in denying Walker a
sentence reduction under the First Step Act; we affirm.
AFFIRMED.