           Case: 19-11847   Date Filed: 01/09/2020   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11847
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:08-cr-00071-JRH-BKE-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DAMIEN FOLEY,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (January 9, 2020)

Before NEWSOM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
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      Damien Foley, a federal prisoner proceeding pro se, appeals following the

denial of his post-judgment 18 U.S.C. § 3582(c) motion for reduction of his total

sentence. On appeal, he argues that the district court erred in denying his motion

to reduce his sentence because he has not been resentenced, as he claims was his

entitlement, under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, §§ 2–3,

124 Stat. 2372. Because Foley was sentenced under a statute that was not

modified by the Fair Sentencing Act, he is not entitled to seek relief under

§ 3582(c), and we affirm.

                                           I

      We review the scope of the district court’s legal authority to reduce a

sentence de novo. United States v. Puentes, 803 F.3d 597, 605 (11th Cir. 2015)

(citation omitted). It is well-established that a district court has no inherent

authority to modify a defendant’s sentence and “may do so only when authorized

by statute or rule.” Id. at 606. Section 3582(c) prevents district courts from

modifying a sentence unless one of the exceptions listed in that provision is met.

One of those exceptions, relevant here, is that a district court may “modify an

imposed term of imprisonment to the extent . . . expressly permitted by statute.”

§ 3582(c)(1)(B). “[W]e may affirm for any reason supported by the record,” even




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if the district court did not rely on it. United States v. Al-Arian, 514 F.3d 1184,

1189 (11th Cir. 2008) (quotation marks and citation omitted).

      Foley contends that the Fair Sentencing Act of 2010, which was made

retroactive to his offense through the First Step Act of 2018, permits him to be

resentenced. The First Step Act made sections 2 and 3 of the Fair Sentencing Act

retroactively applicable to defendants who were sentenced for a covered drug

offense before the Fair Sentencing Act’s enactment on August 3, 2010. First Step

Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194. The First Step Act

authorized, but did not require, a district court 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.” Id. § 404(b). It defined a “covered offense”

as a “a violation of a Federal criminal statute, the statutory penalties for which

were modified by section 2 or 3 of the Fair Sentencing Act of 2010.” Id. § 404(a).

      Sections 2 and 3 of the Fair Sentencing Act reduced statutory penalties for

certain offenses involving crack cocaine. §§ 2–3, 124 Stat. at 2372. Specifically,

section 2 of the Fair Sentencing Act reduced the disparity between the quantities of

crack cocaine and powder cocaine required to trigger the statutory penalties

prescribed by 21 U.S.C. §§ 841(b)(1) and 960(b). Id. § 2; see Dorsey v. United

States, 567 U.S. 260, 264 (2012) (stating that the Fair Sentencing Act “reduc[ed]

the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1”). Section 3


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eliminated the mandatory minimum sentence for simple possession in 21 U.S.C.

§ 844(a). Fair Sentencing Act § 3, 124 Stat. at 2372.

                                                 II

       We hold that Foley’s claim for relief under § 3582(c)(1)(B) fails because he

was not convicted and sentenced under a “covered offense” within the meaning of

the First Step Act. In 2008, a grand jury charged Foley with (1) possession with

intent to distribute five grams or more of cocaine base (crack), in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B)(ii)(II)1 (Count 1); (2) possession of firearms by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 2); and

(3) possession of firearms in furtherance of a drug-trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A) (Count 3). Foley agreed to plead guilty to a lesser-

included offense in Count 1—possession with intent to distribute an unspecified

quantity of cocaine base.2 Foley’s plea agreement stated that Foley understood

that his guilty plea “constitute[d] proof of the lesser included offense of Count



1
 Although the charging document cites 21 U.S.C. § 841(b)(1)(B)(ii)(II) (2006) (setting a
mandatory minimum and maximum penalty for possessing “500 grams or more of a mixture or
substance containing a detectable amount of . . . cocaine, its salts, optical and geometric isomers,
and salts of isomers”), it seems to describe conduct that is covered only by 21 U.S.C.
§ 841(b)(1)(B)(iii) (2006) (setting a mandatory minimum and maximum penalty for possessing
“5 grams or more of a mixture or substance described in clause (ii) which contains cocaine
base”). The error does not affect our analysis here, both (1) because the penalties for the crime
with which Foley was charged and the crime for which he probably should have been charged
are the same and (2) because Foley ultimately pleaded guilty to a lesser-included offense.
2
  Foley also pled guilty to Count 2 and was sentenced to 120-months imprisonment for that count
to be served concurrently with his 151-months sentence for Count 1.
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One, that is to say, without any drug quantity threshold being alleged for penalty

enhancing purposes.”

       Since Foley pled guilty to possessing, with the intent to distribute, an

unspecified quantity of cocaine base, he was sentenced under § 841(b)(1)(C).3

See, e.g., United States v. Gallego, 247 F.3d 1191, 1197 (11th Cir. 2001)

(explaining that when there is a conviction with no quantity determination, “a

defendant is subject to the penalties prescribed in 21 U.S.C. § 841(b)(1)(C)”);

United States v. Razz, 387 F. Supp. 3d 1397, 1407 (S.D. Fla. 2019) (stating that the

defendant’s conviction “would now fall under Section 841(b)(1)(C) because [that

count] involved a Schedule II controlled substance, but in an insufficient quantity

to trigger the Section 841(b)(1)(B) penalties”). Sections 2 and 3 of the Fair

Sentencing Act modified 21 U.S.C. §§ 841(b)(1)(A)(iii), 841(b)(1)(B)(iii), 844(a),

960(b)(1)(C), and 960(b)(2)(C)—but, importantly here, not § 841(b)(1)(C).

                                              III

       Because the district court sentenced Foley under § 841(b)(1)(C), which was

not modified by section 2 or 3 of the Fair Sentencing Act, Foley is not eligible for

relief. The district court did not err in denying Foley’s motion.

       AFFIRMED.


3
  Foley does not dispute that he was sentenced under § 841(b)(1)(C), but instead argues that
§ 841(b)(1)(C) is a covered offense under the First Step Act. For the reasons stated above, we
reject that argument.
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