USCA11 Case: 20-13342 Date Filed: 10/22/2021 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13342
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MALCOLM SHAW,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:99-cr-00125-KMM-8
____________________
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2 Opinion of the Court 20-13342
Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Malcolm Shaw, a federal prisoner, appeals the district
court’s order denying his motion for a sentence reduction under
Section 404 of the First Step Act of 2018, Pub. L. No. 115-391,
§ 404(b), 132 Stat. 5194, 5222 (“First Step Act”). The United States
agrees that the district court erred in concluding that Shaw is stat-
utorily ineligible for a sentence reduction. Because Shaw was sen-
tenced for a covered offense and did not receive the lowest statu-
tory penalty available to him under the Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124 Stat. 2372 (“Fair Sentencing Act”), he was
eligible for First Step Act relief. Accordingly, we vacate and re-
mand.
I.
Shaw was one of fifteen defendants convicted in a large drug
trafficking case. He was convicted on three counts: conspiracy to
possess with intent to distribute both powder cocaine and cocaine
base (Count 2), and two counts of distribution of powder cocaine
(Counts 11 and 12). Count 2 of the third superseding indictment
alleged that Shaw conspired with intent to possess at least five kil-
ograms of powder cocaine and at least 50 grams of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)–(iii), and 846.
Counts 11 and 12 were powder-only cocaine offenses. Shaw was
eventually sentenced to 360 months imprisonment on each of the
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20-13342 Opinion of the Court 3
three counts. The sentences were set to run concurrently, to be
followed by 10 years of supervised release.
Shaw later filed a motion for a reduction of sentence under
the First Step Act. He argued that he was eligible for a sentence
reduction as to Count 2 because that count involved both powder
cocaine and crack cocaine. He reasoned that because statutory pen-
alties for offenses involving crack cocaine were modified by the
Fair Sentencing Act, a multiple-element offense involving crack co-
caine was a “covered offense” under the First Step Act. The district
court denied Shaw’s motion, concluding that Shaw was not eligible
for a sentence reduction because he had not been convicted of a
covered offense. It held that although Count 2 charged Shaw with
conspiracy to distribute both powder cocaine and crack cocaine,
the sentencing court had imposed a sentence based on the statutory
penalties for powder cocaine, not crack cocaine. And because the
Fair Sentencing Act did not modify the statutory penalties for pow-
der cocaine, Shaw was not entitled to a sentence reduction under
the First Step Act. Shaw timely appealed.
II.
We review de novo whether a district court had the author-
ity to modify a term of imprisonment under the First Step Act.
United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020).
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4 Opinion of the Court 20-13342
III.
The Fair Sentencing Act amended the statutory penalties at-
tached to offenses involving crack cocaine to reduce sentencing dis-
parities between those offenses and offenses involving powder co-
caine. See 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). The passage of the
First Step Act made these amended statutory penalties retroactive.
See First Step Act § 404. The First Step Act provides that a 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. § 404(b). It 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). Because Section 2 of the Fair
Sentencing Act “modified the statutory penalties for crack-cocaine
offenses that have as an element the quantity of crack cocaine pro-
vided in subsections 841(b)(1)(A)(iii) and (B)(iii),” we have held that
a movant was convicted of a “covered offense” if he was convicted
of an offense that triggered one of those statutory penalties. Jones,
962 F.3d at 1298.
The district court held that Shaw’s offense was not covered
because, although it contained crack cocaine and powder cocaine
elements, the sentencing court ultimately imposed the statutory
penalty attached to offenses involving powder cocaine, not crack.
After the district court denied Shaw’s motion, we rejected its rea-
soning in United States v. Taylor, 982 F.3d 1295 (11th Cir. 2020).
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20-13342 Opinion of the Court 5
There, we held that multiple-object offenses that include a cocaine-
base element triggering either Section 841(b)(1)(A)(iii) or (B)(iii) are
covered offenses under the First Step Act. We reasoned that the
statutory penalties for a drug-trafficking offense include all the pen-
alties triggered by every drug-quantity element of the offense, not
just the highest tier of penalties triggered by any one drug-quantity
element. Id. at 1300–01. And we explained that the statutory pen-
alties for an offense included the penalties triggered by the offense
regardless of whether those penalties were the ones applied at sen-
tencing. Id. at 1301. Thus, the presence of a cocaine base
drug-quantity element renders the offense “covered” under the
First Step Act even if the movant ultimately would be subject to
the same statutory sentencing range because of another drug-quan-
tity element of the offense. Id.
We must remand for the district court to consider whether
to grant or deny Shaw’s motion in light of Taylor. Here, as in Tay-
lor, Shaw was sentenced for a multiple-object offense that included
a crack cocaine element and a powder cocaine element. Both par-
ties agree that, after Taylor, Count 2 of Shaw’s indictment is a cov-
ered offense under the First Step Act. They also agree that, because
Shaw’s 360-month sentence for Count 2 was not already the lowest
available sentence under the Fair Sentencing Act’s modified tiered
penalties, the district court erred in ruling that Shaw was ineligible
for First Step Act relief on that count. Because the district court did
not alternatively exercise its discretion in denying relief in light of
the statutory factors, a limited remand is required for the district
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6 Opinion of the Court 20-13342
court to consider whether to exercise its discretion to grant or deny
Shaw’s motion.
VACATED AND REMANDED.