     Case: 19-30880      Document: 00515513597         Page: 1    Date Filed: 08/03/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 19-30880                           August 3, 2020
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


              Plaintiff - Appellee

v.

WILLIE JONES, JR., also known as Gator, also known as G.,

              Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CR-108-1


Before STEWART, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Willie Jones, Jr., appeals the district court’s denial
of his motion for a sentence reduction under the First Step Act. For the reasons
stated herein, we affirm.
                          I. Facts & Procedural History
       In 2011, Jones was convicted of (1) one count of conspiring to distribute
and possess with intent to distribute five kilograms or more of cocaine and 50
grams or more of cocaine base (“crack”) in violation of 21 U.S.C. § 846; (2) two



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 19-30880
counts of unlawful travel in aid of a racketeering enterprise in violation of 18
U.S.C. § 1952(a); and (3) two counts of unlawful use of communications
facilities in violation of 21 U.S.C. § 843(b). The district court sentenced Jones
to 327 months of imprisonment for the cocaine count, 60 months for the
unlawful travel counts, and 48 months for the unlawful use counts, with all
terms to run concurrently. This court dismissed Jones’s direct appeal as
frivolous. See United States v. Jones, 462 F. App’x 438, 438–39 (5th Cir. 2012).
Jones subsequently filed for habeas relief under 28 U.S.C. § 2255 and that
proceeding was also unsuccessful. In 2014, Jones moved for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the United
States Sentencing Guidelines. The district court granted Jones’s motion and
reduced his aggregate prison term from 327 to 262 months.
      In 2019, Jones filed the motion at issue in this appeal seeking to obtain
a sentence reduction pursuant to Section 404 of the First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194, 5222 (2018). The reviewing probation officer
observed that the law related to offenses involving crack had changed in 2010
with the Fair Sentencing Act. A higher amount of crack was now necessary to
trigger the 10-year mandatory minimum prison sentence that was applied in
Jones’s case, and the First Step Act made the 2010 law retroactive.
Nevertheless, the officer noted that the law related to powder cocaine offenses
had not changed and Jones’s offense involved both powder cocaine and crack.
The officer concluded that because the amount of powder cocaine involved in
Jones’s offense was sufficient to trigger the 10-year mandatory minimum
irrespective of the amount of crack involved, he was ineligible for a reduction.
      Jones, through the Federal Public Defender (“FPD”), objected, noting
that numerous district courts have held that a hybrid offense involving both
powder cocaine and crack did not render the defendant ineligible for a sentence


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                                  No. 19-30880
reduction. Additionally, the FPD argued that various other factors warranted
a sentence reduction, including Jones’s attempts to better himself in prison.
      In considering the 18 U.S.C. § 3553(a) factors, the district court
explained:
             The Court denies the defendant’s motion for a
             downward variant sentence regardless of whether he
             is eligible for relief under the First Step Act. The
             defendant’s statutory and guideline provisions are
             unaffected by the First Step Act, and he previously
             received a top of the guideline sentence at his original
             sentencing and when he was granted a sentence
             reduction pursuant to Amendment 782. As such, the
             Court does not believe a downward variant sentence is
             appropriate in this case.

Jones filed this appeal.
                           II. Standard of Review
      We review a district court’s denial of a motion for sentence reduction
under the First Step Act for abuse of discretion. See United States v. Jackson,
945 F.3d 315, 319 (5th Cir. 2019). To the extent the district court’s decision
turned on its interpretation of the statute, we review de novo. Id.
                                III. Discussion
      Section 404 of the First Step Act gives courts the discretion to apply the
Fair Sentencing Act of 2010 to reduce a prisoner’s sentence for certain covered
offenses. See United States v. Hegwood, 934 F.3d 414, 416–17 (5th Cir. 2019).
An offense qualifies as covered if it was committed before August 3, 2010, and
violated a federal criminal statute containing penalties that were modified by
section 2 or 3 of the Fair Sentencing Act of 2010. See id. at 416. Relevant here,
Section 2 of the Fair Sentencing Act amended 21 U.S.C. § 841(b)(1)(A)(iii), in
pertinent part, by increasing the amount of crack required to trigger the
statutory imprisonment range of 10 years to life from 50 to 280 grams. See Fair

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Sentencing Act of 2010, Pub. L. 111-220, § 2(a)(1), 124 Stat. 2372 (2010);
Jackson, 945 F.3d at 318 & n.1.
      Section 841(b) sets out the statutory penalties for Jones’s § 846 drug
conspiracy conviction. See United States v. Rodriguez-Escareno, 700 F.3d 751,
754 (5th Cir. 2012) (noting that § 841 sets out the substantive crime and
penalties for § 846 conspiracies). Jones committed his offense between July 20,
2006, and August 6, 2008, and it involved five kilograms or more of powder
cocaine and 50 grams or more of crack. Under the applicable versions of § 841,
both the powder cocaine and crack amounts supported the imprisonment range
of 10 years to life.
      Given that Section 2 of the Fair Sentencing Act did not alter the amount
of powder cocaine required to trigger the higher statutory imprisonment range,
the question here is whether the district court abused its discretion in denying
Jones’s motion for a sentence reduction under the First Step Act given the
favorable change in the law for crack offenses. We hold that it did not.
      The district court was not required to reduce Jones’s sentence pursuant
to his motion under the First Step Act. See First Step Act, § 404(c) (“Nothing
in this section shall be construed to require a court to reduce any sentence
pursuant to this section.”). Rather, the court exercised its broad discretion not
to grant Jones yet another sentence reduction. See Hegwood, 934 F.3d at 418
(noting that “Section 404(b) [] states that the court may reduce a sentence for
a covered offense, giving it discretion.” (emphasis in original)). Although Jones
devotes much of his argument on appeal to the point that district courts are
split on the issue of whether hybrid offenses involving crack and powder
cocaine render a defendant ineligible for a sentence reduction under the First
Step Act, this does not change our analysis. “That [a defendant] is eligible for
resentencing does not mean he is entitled to it.” Jackson, 945 F.3d at 321
(quoting United States v. Beamus, 943 F.3d 789, 792 (6th Cir. 2019)). As the
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                                No. 19-30880
district court reasoned, Jones “previously received a top of the guideline
sentence at his original sentencing when he was granted a sentence reduction
pursuant to Amendment 782.” On this basis, it reasonably concluded that a
further sentence reduction was not appropriate. Moreover, the district court
had no obligation to consider Jones’s post-sentencing conduct in evaluating his
motion for a sentence reduction. Id. at 321 (citing Hegwood, 934 F.3d at 418).
As we have explained, the First Step Act does not contemplate a “plenary
resentencing.” See Hegwood, 934 F.3d at 418 (“The district court decides on a
new sentence by placing itself in the time frame of the original sentencing,
altering the relevant legal landscape only by the changes mandated by the
2010 Fair Sentencing Act.”). The district court did not abuse its discretion in
denying Jones’s motion for a sentence reduction under the First Step Act.
                               IV. Conclusion
      The district court’s judgment is AFFIRMED.




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