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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14187
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER BERNARD WILLIAMS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:06-cr-00034-WLS-TQL-1
____________________
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2 Opinion of the Court 20-14187
Before WILSON, LUCK, and LAGOA, Circuit Judges.
WILSON, Circuit Judge:
Christopher Williams, who was convicted in 2007 of distrib-
uting cocaine base (crack cocaine) within 1,000 feet of a public
housing facility and school, appeals the district court’s denial of his
motion for a sentence reduction under § 404 of the First Step Act
of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222. He argues that
he was eligible for relief under the First Step Act because his
21 U.S.C. § 860(a) drug distribution conviction was a “covered of-
fense” under § 404(a), given that the Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124 Stat. 2372, modified § 860(a) by modifying
the statute it cross-references, 21 U.S.C. § 841(b). After careful re-
view, we find that Williams was not sentenced for a covered of-
fense because the penalties for his offense, defined by 21 U.S.C. §§
841(b)(1)(C) and 860(a), were not modified by the Fair Sentencing
Act. Thus, we affirm the district court’s denial of Williams’s mo-
tion for sentence reduction.
I.
In 2006, a grand jury charged Williams with two counts of
distribution of unspecified amounts of crack cocaine within 1,000
feet of a housing facility and school, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 860(a). Pursuant to a written plea
agreement, Williams pled guilty to Count 1 in exchange for the
government moving to dismiss Count 2. He stipulated that the
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20-14187 Opinion of the Court 3
drug quantity attributable to him for calculating his guideline range
was more than 500 milligrams but less than 1 gram of crack co-
caine.
The presentence investigation report (PSI) described the of-
fense conduct as follows. In 2005, undercover agents approached
Williams on two separate occasions to purchase crack cocaine,
which Williams sold to them. Both drug transactions occurred
within 1,000 feet of housing facilities owned by a public housing
facility and within 1,000 feet of a public elementary school.
The PSI assigned Williams a base offense level of 18 based
on the stipulated amount of crack cocaine. He received a career
offender sentencing enhancement, raising the offense level to 34.
He then received a three-level reduction for acceptance of respon-
sibility, resulting in a total offense level of 31. The PSI noted that
the statutory penalty was 1 to 40 years’ imprisonment and at least
six years of supervised release, pursuant to 21 U.S.C. §§
841(b)(1)(C) and 860(a). The guideline imprisonment range was
188 to 235 months. On March 14, 2007, the district court sentenced
Williams to 200 months’ imprisonment followed by six years of su-
pervised release. On appeal, we affirmed his conviction and sen-
tence. United States v. Williams, 231 F. App’x 936 (11th Cir. 2007).
Williams’s projected release date is August 4, 2022.
In June 2019, Williams filed a motion to reduce his sentence
based on the First Step Act. Williams argued, in relevant part, that
he had been convicted of a covered offense under the First Step Act
because the penalties for the statute of his conviction were
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4 Opinion of the Court 20-14187
modified by the Fair Sentencing Act. He asserted that the Fair Sen-
tencing Act may not have modified the text of § 841(b)(1)(C), but it
did modify the weight range therein and increased the threshold
weight. He contended that § 2(a) of the Fair Sentencing Act thus
modified all of § 841(b)(1)’s statutory penalties that applied to crack
cocaine offenses. He then averred that eligibility under the First
Step Act did not depend on whether § 2 of the Fair Sentencing Act
changed any statutory range of imprisonment in § 841(b)(1).
In October 2020, the district court denied Williams’s mo-
tion. Relying on the reasoning in one of our unpublished deci-
sions, 1 the district court found that §§ 841(b)(1)(C) and 860(a) were
not covered offenses under the First Step Act because § 2 of the Fair
Sentencing Act had not modified the statutory penalties for §
841(b)(1)(C) and the penalties for Williams’s offense had remained
the same even after the passage of the Fair Sentencing Act. It thus
concluded that Williams was ineligible for First Step Act relief. The
district court also noted that his sentence of 200 months remained
appropriate because Williams remained a career offender and the
penalties of his crime had not changed, meaning that his guideline
range was the same.
Williams timely filed a notice of appeal. While Williams’s
appeal was pending, the Supreme Court granted certiorari in Terry
v. United States. 141 S. Ct. 975 (2021). The question presented in
1 United States v. Cunningham, 824 F. App’x 835 (11th Cir. 2020), cert. denied,
141 S. Ct. 2821 (2021).
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20-14187 Opinion of the Court 5
Terry centered around “[w]hether pre-August 3, 2010, crack of-
fenders sentenced under 21 U.S.C. § 841(b)(1)(C) have a ‘covered
offense’ under Section 404 of the First Step Act.” On the parties’
joint request, we held Williams’s appeal in abeyance until the Su-
preme Court resolved Terry. In June 2021, the Supreme Court is-
sued its opinion in Terry v. United States, 141 S. Ct. 1858 (2021).
II.
We review de novo questions of statutory interpretation
and whether a district court had authority to modify a term of im-
prisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir.
2020), cert. denied, 141 S. Ct. 2635 (2021). We review for an abuse
of discretion the district court’s denial of an eligible movant’s re-
quest for a reduced sentence under the First Step Act. Id.
Although district courts lack the inherent authority to mod-
ify a term of imprisonment, 18 U.S.C. § 3582(c), the First Step Act
expressly permits them to reduce a previously imposed term of im-
prisonment pursuant to its provisions, Jones, 962 F.3d at 1297.
III.
On appeal, Williams argues that, because his 21 U.S.C. §
860(a) conviction was a “covered offense” under the First Step Act
given that the Fair Sentencing Act modified § 860(a) by modifying
21 U.S.C. § 841(b), the district court erred in finding him ineligible
for a sentence reduction. We disagree.
Section 841 contains two subsections: “Subsection (a) makes
it unlawful to knowingly or intentionally possess with intent to
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6 Opinion of the Court 20-14187
distribute any controlled substance. Subsection (b) lists additional
facts that, if proved, trigger penalties.” Terry, 141 S. Ct. at 1862.
Before 2010, a violation under 21 U.S.C. § 841(a) carried a manda-
tory-minimum penalty of 10 years’ imprisonment if the offense in-
volved at least 50 grams of crack cocaine. 21 U.S.C. § 841(b)(1)(A)
(2006). And under the next provision, § 841(b)(1)(B), a § 841(a) vi-
olation carried a mandatory-minimum penalty of five years’ im-
prisonment for at least 5 grams of crack cocaine. Id. § 841(b)(1)(B)
(2006). By contrast, § 841(b)(1)(C) previously imposed “a third pen-
alty—possession with intent to distribute an unspecified amount of
a schedule I or II drug—that” carried a maximum penalty of
20 years’ imprisonment, “did not treat crack and powder offenses
differently, did not depend on drug quantity, and did not include a
mandatory minimum.” Terry, 141 S. Ct. at 1860–61; 21 U.S.C.
§ 841(b)(1)(C) (2006). Crack cocaine is a Schedule II drug. See
21 U.S.C. § 812, Sched. II(a)(4).
Any individual who violates § 841(a) within 1,000 feet of a
public housing facility or school is subject to “twice the maximum
punishment authorized by [§] 841(b)” and a mandatory minimum
sentence of one year, unless “a greater minimum sentence is oth-
erwise provided by [§] 841(b).” 21 U.S.C. § 860(a).
The Fair Sentencing Act, enacted in August 2010, amended
21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the sentencing disparity
between crack and powder cocaine. See Dorsey v. United States,
567 U.S. 260, 268–70 (2012) (detailing the Act’s history). Section 2
of the Fair Sentencing Act changed the quantity of crack cocaine
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20-14187 Opinion of the Court 7
necessary to trigger a 10-year mandatory minimum from 50 grams
to 280 grams and to trigger a five-year mandatory minimum from
five grams to 28 grams. Fair Sentencing Act § 2(a)(1)–(2); see also
21 U.S.C. §§ 841(b)(1)(A)(iii), (b)(1)(B)(iii). Nothing in the Act ex-
pressly changed § 841(b)(1)(C). And the Act was not initially made
retroactive to defendants sentenced before its enactment. United
States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012) (per curiam).
In 2018, Congress enacted the First Step Act, which made
retroactive the statutory penalties for covered offenses under the
Fair Sentencing Act. See First Step Act § 404. Under § 404(b) of the
First Step Act, “[a] court that imposed a sentence for a covered of-
fense 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) (emphasis added). The stat-
ute 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) (emphasis added). 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).
In Jones, we held that a crack-cocaine conviction was a “cov-
ered offense” under First Step Act § 404(a) if it “triggered the higher
penalties in section 841(b)(1)(A)(iii) or (B)(iii),” which were modi-
fied by § 2 of the Fair Sentencing Act. 962 F.3d at 1301. Therefore,
a movant could be eligible for relief under § 404(a) even if he would
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8 Opinion of the Court 20-14187
be subject to the same statutory sentencing range if sentenced now.
See id. at 1302–03; see also United States v. Taylor, 982 F.3d 1295,
1300–01 (11th Cir. 2020).
We did not expressly determine in Jones whether the Fair
Sentencing Act also modified § 841(b)(1)(C). But soon thereafter in
Terry, the Supreme Court concluded that § 841(b)(1)(C) offenses
were not “covered offenses” under the First Step Act. 141 S.
Ct. at 1863–64. Instead, the Supreme Court reasoned that whether
an offense is so covered turns on whether the Fair Sentencing Act
modified the penalties for the particular elements of the peti-
tioner’s offense. Id. at 1862. The pre-2010 versions of § 841(a)
and (b) created three distinct offenses, criminalizing the knowing
or intentional possession with intent to distribute or distribution
of: (1) at least 50 grams of crack cocaine, § 841(a), (b)(1)(A)(iii)
(2006); (2) at least five grams of crack cocaine, § 841(a), (b)(1)(B)(iii)
(2006); and (3) any amount of a schedule I or II drug,
§ 841(a), (b)(1)(C) (2006). Terry, 141 S. Ct. at 1862. The Supreme
Court stated that, by increasing the “triggering quantities” for each
of the first two offenses, the Fair Sentencing Act “modified” the
statutory penalties for those offenses but left unchanged the statu-
tory penalties for the final offense; thus, the final offense,
§ 841(b)(1)(C), was not covered. Id. at 1863.
Williams argues that § 860(a) incorporates § 841(b) entirely,
but the Supreme Court rejected a similar argument in Terry that a
§ 841(b)(1)(C) offense is a covered offense because the Fair Sentenc-
ing Act modified other parts of § 841(b) as to crack cocaine offenses.
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20-14187 Opinion of the Court 9
Id. In fact, whether an element’s offenses are spread across multi-
ple sections or subsections of the U.S. Code is not relevant. United
States v. Arline, No. 20-12229, 2021 WL 5626342, at *2 (11th Cir.
Dec. 1, 2021) (citing Terry, 141 S. Ct. at 1862). The proper inquiry
is whether the offense—defined by its elements—was modified by
the Fair Sentencing Act. Id.
To this point, Williams contends that the penalties for his
offense were modified because § 860(a) refers to the penalties au-
thorized by § 841(b), which were themselves modified. But this
argument disregards that the specific § 841(b)(1)(C) offense for
which Williams was penalized includes no quantity element—the
precise parts of § 841(b)(1)(A)(iii) and (b)(1)(B)(iii) that were modi-
fied by the Fair Sentencing Act. See Terry, 141 S. Ct. at 1863. Fur-
ther, his indictment did not reference a specific drug amount, and
although he stipulated to a drug amount, the district court did not
base its enhancement of Williams’s sentence on that.
Although Terry did not address § 860(a), the Supreme
Court’s reasoning therein supports finding that Williams’s convic-
tion under §§ 841(b)(1)(C) and 860(a) was not a covered offense un-
der § 404 because the penalty for his offense was set by §
841(b)(1)(C), which the Fair Sentencing Act did not alter. Id. at
1863. And none of the distinctions between the offense defined by
§ 841(a) and (b)(1)(C) and Williams’s offense were affected by the
Fair Sentencing Act nor central to the holding in Terry. For these
reasons, Williams fails to show that the district court erred in find-
ing that he was not eligible for relief under the First Step Act.
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10 Opinion of the Court 20-14187
Additionally, there is no indication that Jones’s instructions
on determining a “covered offense” are at odds with Terry, espe-
cially considering that Jones did not expressly resolve whether the
Fair Sentencing Act also modified § 841(b)(1)(C). The language in
Jones indicating that a defendant could have been sentenced for a
covered offense if his statutory penalties remained the same now,
962 F.3d at 1302–03, does not mean that Williams, whose statutory
penalties were not modified, is indeed eligible for a reduction. And
because we find that Williams fails to show that he was sentenced
for a covered offense, we need not reach his argument that he is
eligible for relief under the “as if” clause of the First Step Act. See
First Step Act § 404(b) (“A court that imposed a sentence for a cov-
ered offense may . . . impose a reduced sentence as if sections 2 and
3 of the Fair Sentencing Act of 2010 . . . were in effect at the time
the covered offense was committed.”).
IV.
The district court did not err in concluding that Williams
was not sentenced for a covered offense under Terry because the
penalties for his offense were defined by 21 U.S.C. §§ 841(b)(1)(C)
and 860(a) and the penalties in § 841(b)(1)(C) were not modified by
the Fair Sentencing Act.
AFFIRMED.