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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-11955
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN LAVELL JACKSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:99-cr-14021-DMM-1
____________________
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2 Opinion of the Court 19-11955
ON REMAND FROM THE SUPREME COURT OF THE
UNITED STATES
Before WILLIAM PRYOR, Chief Judge, GRANT, Circuit Judge, and
JUNG, * District Judge.
WILLIAM PRYOR, Chief Judge:
This appeal on remand from the Supreme Court requires us
to reconsider, following the Supreme Court’s decision in Concep-
cion v. United States, 142 S. Ct. 2389 (2022), whether the district
court erred in denying Warren Jackson’s motion for a reduced sen-
tence under the First Step Act of 2018. Following supplemental
briefing, we conclude that Concepcion did not abrogate the rea-
soning of our decision in United States v. Jones, 962 F.3d 1290 (11th
Cir. 2020), which forecloses Jackson’s claim for relief. We also dis-
agree with the parties that Jackson is entitled to relief because his
original sentence was pending on direct appeal when the Supreme
Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). So, we
reinstate our prior decision and affirm the denial of relief.
I. BACKGROUND
In 1999, a grand jury charged Jackson with one count of pos-
sessing with intent to distribute more than 50 grams of crack co-
caine in violation of 21 U.S.C. section 841(a)(1). See Jones, 962 F.3d
at 1295. Jackson proceeded to trial, where a jury found him guilty.
* Honorable William F. Jung, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
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19-11955 Opinion of the Court 3
The jury did not make a finding as to the specific drug quantity
involved in Jackson’s crime; Jackson “was prosecuted before Ap-
prendi v. New Jersey made clear that drug-quantity findings that
increase a defendant’s punishment must be made by a jury based
on a standard of proof of beyond a reasonable doubt.” Id. at 1293
(citing 530 U.S. at 490). The district court found that the offense
involved 287 grams of crack cocaine. Based on this drug-quantity
finding and after applying a sentencing enhancement for three
prior felony drug convictions, the district court imposed a statuto-
rily mandated sentence of life imprisonment. 21 U.S.C.
§ 841(b)(1)(A)(iii) (1994); see also United States Sentencing Guide-
lines § 5G1.1(b) (1998).
Following the district court’s decision, Jackson has had mul-
tiple opportunities to challenge his sentence. We affirmed his con-
viction and sentence on direct appeal. The district court denied at
least four habeas petitions, 28 U.S.C. § 2255(a), and a motion to va-
cate his sentence pursuant to Rule 60, FED. R. CIV. P. 60. And it
denied his motions for a reduction of his sentence. 18 U.S.C.
§ 3582(c)(2). Afterward, the President commuted Jackson’s sen-
tence to 300 months’ imprisonment.
In 2019, Jackson moved to reduce his sentence under the
First Step Act, which permits “[a] court that imposed a sentence for
a covered offense [to] . . . 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.” First Step Act of 2018, Pub.
L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (internal citation
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4 Opinion of the Court 19-11955
omitted). The Act defines a “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 com-
mitted before August 3, 2010.” Id. § 404(a) (internal citation omit-
ted). Section 2(a) of the Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372, 2372, increased the quantity of crack co-
caine necessary to trigger the mandatory penalties under 21 U.S.C.
sections 841(b)(1)(A)(iii) and (b)(1)(B)(iii). Jones, 962 F.3d at 1297.
“A defendant now must traffic at least 280 grams of crack cocaine
to trigger the highest penalties.” Id.
Because the First Step Act retroactively applies the reduced
penalties for crack-cocaine offenses under the Fair Sentencing Act,
movants ordinarily argue that the drug-quantity finding that deter-
mined their statutory penalty at the time of sentencing would per-
mit a lower penalty under the Fair Sentencing Act. Jackson did not
make that argument because, at his sentencing hearing, the judge
found that the offense involved 287 grams of crack cocaine. That
amount—because it is above 280 grams—still triggers “the highest
penalties” under the Fair Sentencing Act. Id.
Instead, Jackson argued he was eligible for a sentence reduc-
tion because a judge, not a jury, made the drug-quantity finding
that increased his statutory range. Jackson maintained that under
Apprendi and Alleyne v. United States, 570 U.S. 99, 116 (2013), “the
statutory penalties [in 21 U.S.C. section 841(b)] may be based only
on a . . . [drug quantity] found as an element by a jury beyond a
reasonable doubt.” Jackson argued that the judge-made drug-
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19-11955 Opinion of the Court 5
quantity finding was thus invalid and that he should have been sen-
tenced within a lower statutory range. He argued that the district
court should reduce his sentence under the First Step Act.
The district court denied Jackson’s motion. It ruled that the
Fair Sentencing Act “would have had no impact on [Jackson’s] sen-
tence . . . [b]ecause the offense involved 2[87] grams of cocaine.”
So, after accounting for Jackson’s enhancements, he would still be
subject to the same statutory mandatory minimum of life impris-
onment.
In United States v. Jones—a consolidated appeal involving
four unrelated appellants—we affirmed the denial of Jackson’s mo-
tion. We held that although Jackson was convicted of a “covered
offense,” he did not prove that the reduction he sought would be
“as if . . . the Fair Sentencing Act . . . were in effect at the time the
covered offense was committed.” Jones, 962 F.3d at 1303 (quoting
First Step Act § 404(b)). We held that the “‘as-if’ requirement im-
poses two [relevant] limits.” Id.; see also United States v. Jackson,
995 F.3d 1308, 1309 (11th Cir. 2021) (Pryor, C.J., respecting denial
of rehearing en banc). “First, it does not permit reducing a mo-
vant’s sentence if he received the lowest statutory penalty that also
would be available to him under the Fair Sentencing Act.” Jones,
962 F.3d at 1303. “Second, in determining what a movant’s statu-
tory penalty would be under the Fair Sentencing Act, the district
court is bound by a previous finding of drug quantity that could
have been used to determine the movant’s statutory penalty at the
time of sentencing.” Id.
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We clarified that “previous finding[s] of drug quantity that
could have been used to determine the movant’s statutory penalty”
include “a previous drug-quantity finding that was necessary to
trigger the statutory penalty [even] if it was made by a judge.” Id.
at 1302. We acknowledged that, under Apprendi, a jury must make
a drug-quantity finding if it increases the statutory penalty. Id. But
we held that “just as a movant may not use Apprendi to collaterally
attack his sentence, he cannot rely on Apprendi to redefine his of-
fense for purposes of a First Step Act motion.” Id. (internal citation
omitted). So, we concluded that “in deciding motions for reduced
sentences under the First Step Act,” the district court may “rely[]
on earlier judge-found facts that triggered statutory penalties that
the Fair Sentencing Act later modified.” Id. at 1303.
We held that the district court was bound by the judge’s ear-
lier drug-quantity finding of 287 grams of crack cocaine. Id. at 1304.
Based on this amount, we held that the “[t]he district court cor-
rectly concluded that it could not reduce Jackson’s sentence be-
cause his drug-quantity finding meant that he would face the same
statutory penalty of life imprisonment under the Fair Sentencing
Act.” Id. (citing 21 U.S.C. § 841(b)(1)(A)(iii) (2012)). Because Jack-
son’s sentence “would have necessarily remained the same,” fol-
lowing the consideration of the drug-quantity finding, “[a]ny re-
duction the district court would grant would not be ‘as if’ the Fair
Sentencing Act had been in effect.” Id. at 1303.
Following our decision, Jackson petitioned for rehearing en
banc. We denied his petition. See Jackson, 995 F.3d at 1308. Jackson
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then petitioned for a writ of certiorari from the Supreme Court.
During the pendency of his petition, the Supreme Court decided in
Concepcion v. United States, 142 S. Ct. at 2396, which factors, be-
sides the changes to the crack-cocaine sentencing ranges, a district
court may consider in deciding whether to exercise its discretion to
reduce a sentence for a covered offense under the First Step Act.
The Supreme Court explained that the “as if” clause did not “limit
the information a district court may use to inform its decision
whether and how much to reduce a sentence.” Concepcion, 142 S.
Ct. at 2402. The Supreme Court held that a district court “may con-
sider other intervening changes of law (such as changes to the Sen-
tencing Guidelines) or changes of fact (such as behavior in prison)
in adjudicating a First Step Act motion.” Id. at 2396. In October
2022, the Supreme Court granted Jackson’s petition, vacated our
judgment, and remanded the case for further consideration in the
light of Concepcion. Jackson v. United States, 143 S. Ct. 72 (2022).
II. STANDARD OF REVIEW
“We review de novo questions of statutory interpretation
and whether a district court had the authority to modify a term of
imprisonment.” Jones, 962 F.3d at 1296 (internal citation omitted).
“We review for abuse of discretion the denial of an eligible mo-
vant’s request for a reduced sentence under the First Step Act.” Id.
III. DISCUSSION
We divide our discussion into two parts. First, we explain
that Concepcion did not abrogate our holding that “the district
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8 Opinion of the Court 19-11955
court is bound by a previous finding of drug quantity that could
have been used to determine the movant’s statutory penalty at the
time of sentencing.” Jones, 962 F.3d at 1303. Second, we explain
that Jackson cannot use a motion for a reduced sentence to correct
an error based on Apprendi.
A. The District Court Correctly Relied on the Judge-Made Drug-
Quantity Finding to Calculate Jackson’s Sentencing Range.
Jackson argues that Concepcion “cannot be squared” with
Jones’s holding that district courts are bound by judge-made drug-
quantity findings in First Step Act proceedings. Jackson maintains
that “the [Supreme] Court rejected Jones’[s] core premise that the
‘as if’ language in § 404(b) imposes a substantive limit on the infor-
mation a court can consider under the [First Step] Act.” Jackson
interprets Concepcion to give district courts complete discretion—
without “any limitations” imposed by the “as-if” provision—to
consider arguments “in favor of, or against, sentence modifica-
tion.” Jackson maintains that the district court was “free to consider
intervening changes in law, including . . . Apprendi, in deciding
whether to reduce [Jackson’s] sentence under the First Step Act.”
The district court’s discretion, Jackson suggests, includes the au-
thority to ignore the earlier judge-made drug-quantity finding in
calculating his statutory sentencing range. We disagree.
We do not read Concepcion so broadly. In Concepcion, the
Supreme Court addressed which factors a district court may con-
sider when a prisoner who was convicted of a “covered offense”
seeks a reduced sentence under the First Step Act. 142 S. Ct. at 2396.
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The movant in Concepcion was convicted of a “covered offense”
for which the penalty range had been lowered in the Fair Sentenc-
ing Act. Id. at 2396–97. But he wanted the district court to consider
other criteria during his First Step Act sentencing modification
hearing. For example, he wanted the court to acknowledge legal
changes that postdated his original sentencing. These changes in-
cluded the vacatur of one of his state convictions and the Supreme
Court’s decision that his other convictions would no longer count
as “crimes of violence.” Id. And he wanted the court to consider
new factual developments. He maintained that he had been reha-
bilitated, citing his drug treatment, job training, and spiritual
growth. Id. The district court had refused to consider these factors.
It ruled that it could “consider[] only the changes in law that the
Fair Sentencing Act enacted,” not other evidence. Id.
The Supreme Court disagreed. It cited the traditional “dis-
cretion federal judges hold at . . . sentencing modification hear-
ings.” Id. at 2399. In the First Step Act, Congress “did not contra-
vene this well-established sentencing practice.” Id. at 2401. The Su-
preme Court concluded that district courts deciding First Step Act
motions may “consider intervening changes of law or fact in exer-
cising their discretion to reduce a sentence.” Id. at 2404. That is,
they may consider whether a movant’s “evidence of rehabilitation
or other changes in law counsel in favor of a sentence reduction”
for an eligible defendant. Id. at 2404–05.
Concepcion does not alter our decision in Jones, which, un-
like Concepcion, was concerned with an issue that arises before the
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sentencing court’s discretion comes into play: determining how
much of a drug the defendant possessed. Jones, 962 F.3d at 1303.
This finding must occur before the district court can define the sub-
stantive offense. Id. at 1302. In Jones, we held that a district court
considering a First Step motion is bound by “earlier judge-found
facts that triggered statutory penalties that the Fair Sentencing Act
later modified.” Id. at 1303. Those facts include “previous finding[s]
of drug quantity.” Id.
Concepcion, by contrast, addressed an issue that arises only
after drug quantity and the corresponding statutory penalties have
been established: which factors the district court may consider in
deciding an appropriate sentence. For instance, had the movant
shown evidence of rehabilitation? Such questions are hardly unu-
sual during a sentencing proceeding. The only peculiarity is that
the First Step Act permits movants to raise them a second time at
a modification proceeding. Put differently, in Concepcion, the Su-
preme Court held that the movant effectively receives a new sen-
tencing determination if he was convicted of a “covered offense”
under the First Step Act. During its deliberations, the district court
may consider intervening factual and legal developments. It may
also decline to modify the movant’s sentence and choose to leave
the earlier sentence intact. See Concepcion, 142 S. Ct. at 2404–05.
Concepcion did not hold that First Step Act movants could
relitigate their cases from the ground up. In fact, the Court sug-
gested the opposite. It cautioned that “[a] district court cannot . . .
recalculate a movant’s benchmark Guidelines range in any way
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other than to reflect the retroactive application of the Fair Sentenc-
ing Act.” Concepcion, 142 S. Ct. at 2402 n.6; see also id. at 2403 n.8.
This guidance is fully consistent with Jones, in which we held that
a movant “cannot rely on Apprendi to redefine his offense for pur-
poses of a First Step Act motion.” 962 F.3d at 1302. If a movant
could use Apprendi to redefine his offense, then the district court
would have to recalculate his guideline range in violation of the
guidance in Concepcion. So Concepcion reinforces our conclusion
in Jones that movants may not use a First Step Act proceeding to
relitigate a drug-quantity finding.
If we concluded otherwise, we would transform the First
Step Act into a more powerful remedy than a motion to vacate. See
28 U.S.C. § 2255. Jackson maintains that district courts weighing a
motion to reduce a sentence may consider any intervening change
of law or fact, regardless of its nexus to sentencing. If that proposi-
tion were true, then movants could use the First Step Act to reliti-
gate not only their drug-quantity finding but also any other factual
findings—including their guilt. District courts do not traditionally
have that kind of discretion during initial sentencings or sentencing
modification hearings. Concepcion, 142 S. Ct. at 2399 (“The discre-
tion federal judges hold at initial sentencings also characterizes sen-
tencing modification hearings.”).
“Nothing in the text [of the First Step Act]” implies such dis-
cretion or invites district courts to “change other variables” than
the modified statutory penalty. Jackson, 995 F.3d at 1310 (Pryor,
C.J., respecting denial of rehearing en banc). Instead, the factual
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findings that support a conviction and statutory penalty may be
challenged on direct appeal. Jackson pursued this route decades
ago and failed. He also moved to vacate his sentence and lost. The
First Step Act does not give him another chance.
B. Jackson Is Not Entitled to Relief Based on the Timing of His
Direct Appeal.
Although the parties disagree about the impact of Concep-
cion on this appeal, they both urge us to remand the case “because
of the particular procedural circumstances of . . . Jackson’s case.”
The parties correctly state that Jackson’s sentence was pending on
direct appeal when the Supreme Court decided Apprendi. And they
seize on language from Jones, where we stated that “in determin-
ing what a movant’s statutory penalty would be under the Fair Sen-
tencing Act, the district court is bound by a previous finding of drug
quantity that could have been used to determine the movant’s stat-
utory penalty at the time of sentencing.” Jones, 962 F.3d at 1303.
The parties maintain that because Apprendi held that a jury must
make a drug-quantity finding and was issued while Jackson’s direct
appeal was pending, the judge’s drug-quantity finding “is not a find-
ing that ‘could have been used to determine [Jackson’s] statutory
penalty at the time of sentencing.’” (Emphasis added.) We reject
the argument that we may now correct an Apprendi error that was
correctible on direct appeal.
“[N]othing in [the First Step Act] suggests that a district
court may revisit a drug-quantity finding for a trafficker’s statutory
penalty . . . .” Jackson, 995 F.3d at 1311 (Pryor, C.J., respecting
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19-11955 Opinion of the Court 13
denial of rehearing en banc). As Jones explained, when the district
court considers a motion for reduced sentence under the First Step
Act, it may “rely[] on earlier judge-found facts that triggered statu-
tory penalties that the Fair Sentencing Act later modified.” 962 F.3d
at 1303. Those facts include “a previous drug-quantity finding that
was necessary to trigger the statutory penalty if it was made by a
judge.” Id. at 1302. “[T]he district court is bound by [its] previous
finding of drug quantity in the same way that it is bound by its pre-
vious finding of drug type.” Jackson, 995 F.3d at 1310 (Pryor, C.J.,
respecting denial of rehearing en banc) (internal quotation marks
and citation omitted).
That Jackson’s direct appeal was pending when Apprendi
was decided does not change this calculus. To be sure, “[a] new
rule of criminal procedure applies to cases on direct review, even if
the defendant’s trial has already concluded.” Edwards v. Vannoy,
141 S. Ct. 1547, 1554 (2021). The parties repeatedly press this point
and argue that Apprendi must apply here. But Jackson’s direct ap-
peal occurred long ago, and a First Step Act motion cannot mas-
querade as a direct appeal. “[J]ust as a movant may not use Ap-
prendi to collaterally attack his sentence, he cannot rely on Ap-
prendi to redefine his offense for purposes of a First Step Act mo-
tion.” Jones, 962 F.3d at 1302 (internal citation omitted). Jackson
cannot use a motion for a reduced sentence to relitigate an earlier
drug-quantity finding.
Jackson had a remedy. After Apprendi was decided, he could
have challenged his sentence as erroneous before we issued the
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mandate for his direct appeal on the ground that the issue of drug
quantity was determined by the sentencing judge, not the jury. See
United States v. Cotton, 535 U.S. 625, 628–29 (2002). Other defend-
ants took this approach. He apparently did not. Although Jackson
argued in his motion to vacate, 28 U.S.C. § 2255, that his sentence
violated the Sixth Amendment, “Apprendi does not apply retroac-
tively [to cases] on collateral review.” McCoy v. United States, 266
F.3d 1245, 1258 (11th Cir. 2001). The First Step Act does not offer
Jackson a redo of his direct appeal.
IV. CONCLUSION
We reinstate our prior decision and AFFIRM the order deny-
ing Jackson’s motion to reduce his sentence.