USCA11 Case: 22-13594 Document: 23-1 Date Filed: 10/05/2023 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13594
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL CROSS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:93-cr-00123-DMM-8
____________________
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2 Opinion of the Court 22-13594
Before JORDAN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Paul Cross, a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion to reduce his total sentence,
under 18 U.S.C. § 3582(c)(2) and First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194, 5239. On appeal, Mr. Cross primarily ar-
gues that the district court had authority to reduce his total sen-
tence in light of the Supreme Court’s recent decision in Concepcion
v. United States, 142 S. Ct. 2389 (2022). He also argues for the first
time that he was entitled to compassionate release under 18
U.S.C. § 3582(c)(1). Rather than responding, the government
moves for summary affirmance and to stay the briefing schedule.
We address the parties’ contentions in turn.
I
In 1994, a grand jury in the Southern District of Florida
charged Mr. Cross with conspiracy to possess with intent to distrib-
ute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
846 (“Count One”); use of firearms, including a machine gun and
silencers, during and in relation to a drug-trafficking crime, in vio-
lation of 18 U.S.C. §§ 924(c) and 2 (“Count Two”); being a fugitive
in possession of firearms, in violation of 18 U.S.C. §§ 922(a)(1),
924(a)(2), and 2 (“Count Eight”); possession of unregistered fire-
arms, in violation of 26 U.S.C. §§ 5861(d), 5871, and 2 (“Count
Nine”); and use of intimidation with intent to influence the testi-
mony of another, in violation of 18 U.S.C. §§ 1512(b)(1), and 2
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22-13594 Opinion of the Court 3
(“Count Ten”). The indictment did not mention either cocaine
base or crack cocaine.
The case proceeded to trial, and a jury found Mr. Cross
guilty on all counts. The presentence investigation report (“PSR”)
described the offense conduct consistent with the evidence pre-
sented at trial. Like the indictment, the PSR did not mention either
cocaine base or crack cocaine. The district court sentenced Mr.
Cross to 720 months’ imprisonment, including a 360-month con-
secutive sentence for the § 924(c) conviction (Count Two).
The district court entered its judgment in 1995. Mr. Cross
appealed, but we affirmed in 1999. See United States v. Walker,
194 F.3d 1322 (1999) (table). Later, the district court reduced Mr.
Cross’ total sentence to 651 months’ imprisonment.
In 2020, Mr. Cross, proceeding pro se, moved the district
court for a sentence reduction under §404 of the First Step Act. He
argued, among other things, that he was convicted of a covered
offense under § 404(b) of the First Step Act. However, he conceded
that he “was sentence[d] for an offense that involved pow[d]er co-
caine and he [wa]s still serving the sentence.”
The district court denied Mr. Cross’ motion. As to the mer-
its of his § 404(b) First Step Act motion, the district court concluded
that Mr. Cross’ sole drug offense of conviction (Count One) in-
volved powder cocaine, not crack cocaine. Accordingly, it con-
cluded that Mr. Cross was not convicted of a “covered offense” un-
der § 404 of the First Step Act and was not eligible for relief.
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4 Opinion of the Court 22-13594
In August of 2022, Mr. Cross filed the present pro se motion
for relief, citing both § 3582 and § 404(b). After describing the First
Step Act, Mr. Cross asserted that “the [18 U.S.C. §] 841(b)(1)(A) sen-
tencing enhancement, as amended, no longer necessarily applie[d]”
to his conduct and, therefore, he “was entitled to the benefit” of
the “sentence structure in § 841(b)(1)(A).” He argued that the dis-
trict court was “not limited under the First Step Act” and could
consider his request based on intervening changes in law based on
the Supreme Court’s decision in Concepcion. He also asserted that
Concepcion required the district court to consider his arguments and
explain its decision.
As for specific changes in the law which he asserted would
benefit him, Mr. Cross cited cases from the Supreme Court, this
Court, and other jurisdictions which he asserted showed that the
district court erred at trial when it gave jury instructions concern-
ing aiding and abetting liability and being a fugitive from justice.
He thus requested the district court to consider these intervening
changes of law in reducing his total sentence.
The district court denied Mr. Cross’ motion. Of relevance,
as it had previously stated about Mr. Cross’ 2020 First Step Act mo-
tion, the district court found that the drug conviction (Count One)
involved powder cocaine rather than crack cocaine, and thus, Mr.
Cross was not eligible for relief under § 404 of the First Step Act.
This appeal followed.
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22-13594 Opinion of the Court 5
II
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1161-62 (5th Cir. 1969). A motion for summary disposition post-
pones the due date for the filing of any remaining brief until this
Court rules on the motion. 11th Cir. R. 31-1(c).
Pro se pleadings will be liberally construed. See Tannenbaum
v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). That said, ar-
guments not raised in an appellant’s initial brief are typically
deemed abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680 (11th Cir. 2014).
A
When appropriate, we will review de novo whether a district
court had the authority to modify a term of imprisonment. See
United States v. Phillips, 597 F.3d 1190, 1194 & n.9 (11th Cir. 2010).
See also United States v. Colon, 707 F.3d 1255, 1258 (11th Cir. 2013)
(same as to district court’s authority to modify a term of imprison-
ment under § 3582(c)(2)). Where a party does not raise an issue
below, however, we will review a challenge on appeal only for
plain error. See United States v. Anderson, 1 F.4th 1244, 1268 (11th
Cir. 2021). Plain error requires: (1) an error; (2) which was plain;
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6 Opinion of the Court 22-13594
and that (3) affects a defendant’s substantial rights. See United States
v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006). “A plain error is an
error that is ‘obvious’ and is ‘clear under current law.’” United
States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017). Generally
speaking, “there can be no plain error where there is no precedent
from the Supreme Court or this Court directly resolving it.” Id.
A district court has no inherent authority to modify a de-
fendant’s sentence and may do so “only when authorized by a stat-
ute or rule.” United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir.
2015); see 18 U.S.C. § 3582(c)(1)(B). The First Step Act is a self-con-
tained, self-executing, independent grant of authority empowering
district courts to modify criminal sentences in the circumstances to
which the Act applies. See United States v. Edwards, 997 F.3d 1115,
1120 (11th Cir. 2021).
The Fair Sentencing Act, enacted on August 3, 2010,
amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the sentencing
disparity between those convicted of crack cocaine offenses, on one
hand, and those convicted of powder cocaine offenses, on the
other. See Fair Sentencing Act of 2010, Pub. L. No. 111-220 § 2(a),
124 Stat. 2372 (2010). Specifically, § 2 of the Fair Sentencing Act
increased the quantity of crack cocaine necessary to trigger a 10-
year mandatory minimum prison term from 50 grams to 280
grams, and the quantity necessary to trigger a 5-year mandatory
minimum prison sentence from 5 grams to 28 grams. See Fair Sen-
tencing Act § 2(a)(1)-(2). But these amendments were not made ret-
roactive to defendants who, like Mr. Cross, were sentenced before
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22-13594 Opinion of the Court 7
the enactment of the Fair Sentencing Act. See United States v. Berry,
701 F.3d 374, 377 (11th Cir. 2012).
Importantly, the Fair Sentencing Act did not address those
who like Mr. Cross were convicted of illegally using firearms,
in violation of 18 U.S.C. § 924(c), being a fugitive in possession of a
firearm, in violation of 18 U.S.C. §§ 922(a)(1), (a)(2), possessing un-
registered firearms, in violation of 26 U.S.C. §§ 5861(d), 5871, or us-
ing intimidation with intent to influence the testimony of another,
in violation of 18 U.S.C. § 1512(b)(1).
In 2018, Congress enacted the First Step Act, which made
retroactive the statutory penalties for covered offenses provided
under the Fair Sentencing Act. See First Step Act § 404. But it also
indicated that “[n]othing in [§ 404] shall be construed to require a
court to reduce any sentence pursuant to this section.” § 404(c) (em-
phasis added).
In Terry v. United States, 141 S. Ct. 1858, 1864 (2021), the Su-
preme Court held that crack cocaine crimes subject only to §
841(b)(1)(C) penalties were not covered offenses within the mean-
ing of the First Step Act. Moreover, because § 841(b)(1)(C) has no
minimum crack cocaine quantity requirement, the Fair Sentencing
Act did not modify the statutory penalty for crimes subject to §
841(b)(1)(C) penalties. See id. at 1863. “Before [the Fair Sentencing
Act of] 2010, the statutory penalties for [§ 841(b)(1)(C)] were 0-to-
20 years, up to a $1 million fine, or both, and a period of supervised
release. After 2010, these statutory penalties remain exactly the
same.” id. at 1862–63. Terry, while noting that the First Step Act
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8 Opinion of the Court 22-13594
“g[ave] certain crack offenders an opportunity to receive a reduced
sentence,” did not address whether a powder cocaine conviction
was a “covered offense” under the First Step Act. Id. at 1860-64. 1
We have explained that the “as-if” requirement of § 404(b)
contains two limitations. See United States v. Jones, 962 F.3d 1290,
1303 (11th Cir. 2020), vacated by Jackson v. United States, 143 S. Ct.
72 (2022), reinstated by United States v. Jackson, 58 F.4th 1331 (2023).
First, the district court cannot reduce a sentence where the movant
received the lowest statutory penalty that would also be available
to him under the Fair Sentencing Act. See id. Second, in determin-
ing what a movant’s statutory penalty would have been under the
Fair Sentencing Act, the district court is bound by previous drug-
quantity findings, including those made by a court, that could have
been used to determine the movant’s statutory penalty at the time
of sentencing. See id. If a movant’s sentence necessarily would
have remained the same had the Fair Sentencing Act been in ef-
fect—i.e., if his sentence was equal to the mandatory minimum im-
posed by the Fair Sentencing Act for the quantity of crack cocaine
that triggered his statutory penalty—then the Fair Sentencing Act
1 The definition of a “covered offense” can cover a multidrug conspiracy of-
fense that includes both a crack-cocaine element and another drug-quantity
element, if the crack-cocaine element of the offense triggered the penalties in
§ 841(b)(1)(A)(iii) or (B)(iii), even if the movant ultimately would be subject to
the same statutory range due to the other drug-quantity element. See United
States v. Taylor, 982 F.3d 1295, 1300-01 (11th Cir. 2020).
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22-13594 Opinion of the Court 9
would not have benefitted him, and the First Step Act does not au-
thorize the district court to reduce his sentence. Id.
In Concepcion, the Supreme Court considered the appeal of
the denial of a defendant’s First Step Act motion. See 142 S. Ct. at
2396. Of relevance, Mr. Concepcion had pleaded guilty of one
count of distributing five or more grams of crack cocaine in viola-
tion of 21 U.S.C. § 841(a)(1). See id. In addition, Mr. Concepcion
was sentenced as a career offender under the Sentencing Guide-
lines, raising his guidelines range significantly. See id. After Mr.
Concepcion filed his First Step Act motion, the government con-
ceded that he was convicted of a “covered offense.” Id. at 2397.
However, the government argued, and the lower courts agreed,
that the district court could not consider later changes to the Sen-
tencing Guidelines—including those that would make Mr. Concep-
cion ineligible for a career offender enhancement if he was sen-
tenced after the First Step Act—in determining whether to reduce
his sentence. See id. at 2397-98, 2398 n.2.
The Supreme Court held in Concepcion that the First Step Act
allows district courts to consider intervening changes of law or fact
in exercising their discretion to reduce a sentence pursuant to the
First Step Act. See id. at 2404. The Supreme Court stated that a
district court has discretion to reject a defendant’s arguments about
an intervening change in law, so long as it articulates a brief state-
ment of reasons for its ruling on a defendant’s motion. See id. at
2404-05. However, the Supreme Court did not discuss or abrogate
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10 Opinion of the Court 22-13594
its prior precedent on what constitutes a “covered offense” for the
purposes of the First Step Act. See id. at 2395-2405.
In Jackson, we noted that Concepcion “addressed which fac-
tors a district court may consider when a prisoner who was con-
victed of a ‘covered offense’ seeks a reduced sentence under the
First Step Act.” Jackson, 58 F.4th at 1336. Concepcion held that “dis-
trict courts deciding First Step Act motions may consider interven-
ing changes of law or fact in exercising their discretion to reduce a
sentence.” Id. (quotations omitted). In other words, “they may
consider whether . . . other changes in law counsel in favor of a sen-
tence reduction’ for an eligible defendant.” Id. (emphasis added)
(quoting Concepcion, 142 S. Ct. at 2404–05).
Accordingly, we held in Jackson that Concepcion did not abro-
gate the reasoning in Jones. Id. at 1336-37. We reasoned that Jones
“was concerned with an issue that arises before the sentencing
court’s discretion comes into play: determining how much of a
drug the defendant possessed.” Id. at 1336. In contrast, we noted
that Concepcion “addressed an issue that arises only after drug quan-
tity and the corresponding statutory penalties have been estab-
lished: which factors the district court may consider in deciding an
appropriate sentence.” Id.
B
Here, Mr. Cross cited 18 U.S.C. § 3582(c)(2) in the present
motion before the district court, but he did not raise any argument
about it. Thus, he would have to show plain error in order to pre-
vail on this ground. See Anderson, 1 F.4th at 1268. On appeal, Mr.
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22-13594 Opinion of the Court 11
Cross does not explain how that provision entitles him to relief, so
any challenge to the district court’s order on that ground is aban-
doned. See Sapuppo, 739 F.3d at 680. In any event, because Mr.
Cross does not cite to any authority suggesting that he is entitled
to relief under § 3582(c)(2), any error was not plain.
Mr. Cross’ brief discusses the compassionate release statute,
18 U.S.C. § 3582(c)(1). But Mr. Cross did not present this issue to
the district court and has failed to show the district court plainly
erred in denying his motion by failing to consider arguments for
compassionate release that he did not present—since he moved for
relief under § 404(b). See Anderson, 1 F.4th at 1268.
As to his arguments under the First Step Act, Mr. Cross was
not convicted of a “covered offense” for which his Count One sen-
tence could be reduced under § 404(b), so the district court did not
err in denying his motion. First, Mr. Cross’ firearms and witness-
intimidation offenses—Counts Two, Eight, Nine, and Ten—were
not affected by the First Step Act in any respect. Second, Mr. Cross’
sole drug offense—Count One—was a powder cocaine offense, so
it, too, was unaffected by the First Step Act. See Terry, 141 S. Ct. at
1863–64. Therefore, the district court did not err in finding that
Mr. Cross was not convicted of a covered offense and was ineligible
for § 404(b) relief.
Concepcion does not change this conclusion. In Terry, the Su-
preme Court held that the Fair Sentencing Act modified the statu-
tory penalties for only subparagraph (A) and (B) crack offenses, not
subparagraph (C) offenses or non-covered offenses, such as powder
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12 Opinion of the Court 22-13594
cocaine offenses. See Terry, 141 S. Ct. at 1863–64. And nothing in
Concepcion found this discussion incorrect or abrogated its reason-
ing. See Concepcion, 142 S. Ct. at 2397. Further, we have concluded
that Concepcion “addressed an issue that arises only after drug quan-
tity and the corresponding statutory penalties have been estab-
lished: which factors the district court may consider in deciding an
appropriate sentence.” Jackson, 58 F.4th at 1336. Accordingly, Con-
cepcion’s language about considering intervening caselaw is inappli-
cable to Mr. Cross’ case, and Mr. Cross’ citations to intervening
caselaw do not entitle him to § 404(b) relief.
III
The government’s position is “clearly right as a matter of
law so that there can be no substantial question as to the outcome
of the case.” We therefore grant its motion for summary affir-
mance. Groendyke Transp., Inc., 406 F.2d at 1161-62.
AFFIRMED.2
2 We deny as moot the government’s motion to stay the briefing schedule.