USCA11 Case: 19-13386 Date Filed: 07/26/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13386
Non-Argument Calendar
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D.C. Docket No. 1:03-cr-21012-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL A. SIMMONS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 26, 2021)
Before JILL PRYOR, BRASHER, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Michael Simmons appeals the district court’s denial of his motion for a
reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. 115-391,
132 Stat. 5194 (“First Step Act”). On appeal, Simmons contends that his
conviction under 21 U.S.C. § 841(b)(1)(C) is a “covered offense” for purposes of
the First Step Act, meaning that the district court had authority to reduce his
sentence. While this case was pending on appeal, however, the Supreme Court
issued an opinion that forecloses his appellate arguments. We therefore affirm the
district court’s denial of First Step Act relief.
“We review de novo questions of statutory interpretation and whether a
district court had the authority to modify a term of imprisonment.” United States
v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020) (citations omitted). “We review for
abuse of discretion the denial of an eligible movant’s request for a reduced
sentence under the First Step Act.” Id.
District courts lack the inherent authority to modify a term of imprisonment
but may do so to the extent that a statute expressly permits. 18 U.S.C.
§ 3582(c)(1)(B). The First Step Act, which makes certain portions of the Fair
Sentencing Act retroactive, expressly permits district courts to reduce a previously
imposed term of imprisonment. Jones, 962 F.3d at 1297.
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 crack and
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powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372
(“Fair Sentencing Act”); Dorsey v. United States, 567 U.S. 260, 268–69 (2012).
Specifically, as to § 841(b)(1), § 2(a)(1) of the Fair Sentencing Act raised the
quantity of crack cocaine necessary to trigger a 10-year mandatory minimum
sentence from 50 to 280 grams, and § 2(a)(2) raised the quantity threshold to
trigger a 5-year mandatory minimum from 5 grams to 28 grams. Fair Sentencing
Act § 2(a)(1)–(2); 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). The Fair Sentencing Act
similarly increased the quantity threshold to trigger 10-year and 5-year mandatory
minimum sentences under 21 U.S.C. § 960(b). Fair Sentencing Act § 2(b); 21
U.S.C. § 960(b)(1)(C), (2)(C). These amendments were not made retroactive to
defendants who were sentenced before the enactment of the Fair Sentencing Act.
United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012).
In 2018, Congress enacted the First Step Act, which made the Fair
Sentencing Act’s statutory penalties retroactive for “covered offenses.” See First
Step Act § 404. Under § 404(b) of the First Step Act, “[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). The statute 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
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before August 3, 2010.” Id. § 404(a). 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).
The Supreme Court recently rejected the argument that Simmons makes
here, specifically, that a conviction under 21 U.S.C. § 841(b)(1)(C) is a “covered
offense” entitling a defendant to seek a sentencing reduction under the First Step
Act. Terry v. United States, No. 20-5904, manuscript op. at 7–8 (U.S. June 14,
2021). In Terry, the Court noted that a violation of federal criminal law was not a
“covered offense” under the First Step Act unless certain provisions of the Fair
Sentencing Act had modified the statutory penalties for such a violation. Id. at 5.
Because § 2(a) of the Fair Sentencing Act had modified the statutory penalties only
for § 841(b)(1)(A) and (B), while the penalties for subsection (C) remained the
same, the Court concluded that a violation of subsection (C) did not qualify as a
“covered offense.” Id. at 5–7. Accordingly, the Court held that a defendant
convicted under § 841(b)(1)(C) was ineligible for a First Step Act sentence
reduction. Id. at 5, 8.
Here, the district court did not err in concluding that Simmons was ineligible
for a sentence reduction under the First Step Act. As Terry explained, Simmons’s
conviction under 21 U.S.C. § 841(b)(1)(C) did not qualify as a “covered offense.”
Thus, Simmons was ineligible for a sentence reduction. Given that the district
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court lacked authority to reduce Simmons’s sentence, we need not reach his
argument that the district court abused its discretion in declining to award a
downward variance.
Because the district court did not err in concluding that Simmons was
ineligible for First Step Act relief, we affirm the court’s order denying his motion
for a sentence reduction.
AFFIRMED.
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