               Case: 19-13728     Date Filed: 07/24/2020   Page: 1 of 6



                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-13728
                             Non-Argument Calendar
                           ________________________

                  D.C. Docket No. 3:12-cr-00003-DHB-BKE-16

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

STEPHIN WHITE,
a.k.a. Step,

                                                                Defendant-Appellant.

                           ________________________

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

                                   (July 24, 2020)

Before WILSON, ROSENBAUM and MARCUS, Circuit Judges.

PER CURIAM:

      Stephin White, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion for a sentence reduction under the First Step Act of 2018,

Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (“First Step Act”), after it found
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that the First Step Act would not affect his sentence. On appeal, White argues that:

(1) the district court erred by not reducing his sentence under the First Step Act,

which violated his constitutional rights to due process; and (2) among other things,

his other constitutional rights were violated, his counsel was ineffective, and the

court erred in computing the drug-quantity amount. After careful review, we affirm.

      We review a district court’s authority to modify a sentence de novo. United

States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). A district court lacks the

inherent authority to modify a term of imprisonment. Id. (citing 18 U.S.C. §

3582(c)). But it may do so to the extent that a statute expressly permits. Id. (citing

18 U.S.C. § 3582(c)(1)(B)).

      In addition, under § 3582(c)(2), where a defendant’s term of imprisonment

was based on a guideline range “that has subsequently been lowered by the

Sentencing Commission,” a district court has the discretion to reduce the sentence if

that kind of reduction is consistent with applicable policy statements of the

Guidelines. 18 U.S.C. § 3582(c)(2). The applicable policy statement, found in

U.S.S.G. § 1B1.10, lists those guideline amendments that may apply retroactively to

reduce a sentence. U.S.S.G. § 1B1.10. Only amendments listed in Section 1B1.10

that have the effect of lowering the sentencing range upon which a sentence was

based may be considered for reduction of a sentence under Section 3582(c)(2). Id.

§ 1B1.10(a)(2); United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003).


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Section 3582(c) does not grant the district court jurisdiction to consider extraneous

resentencing issues, including challenges to the constitutionality of a sentence,

which a claimant must instead present as a collateral attack on his sentence under §

2255. United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000) (holding that

§ 3582(c)(2) “does not constitute a de novo resentencing” and “all original

sentencing determinations remain unchanged with the sole exception of the

guideline range that has been amended since the original sentencing”).

      First, we are unpersuaded by White’s argument that the district court erred in

denying his motion for sentence reduction under § 404 of the First Step Act. The

basis for his argument begins with the Fair Sentencing Act, enacted on August 3,

2010, which amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the sentencing

disparity between crack and powder cocaine. Fair Sentencing Act of 2010, Pub. L.

No. 111-220, 124 Stat. 2372; see Dorsey v. United States, 567 U.S. 260, 268-69

(2012) (detailing the history that led to enactment of the Fair Sentencing Act,

including the Sentencing Commission’s criticisms that the disparity between crack

cocaine and powder cocaine offenses was unjustified, disproportional, and reflected

race-based differences). Section 2 of the Fair Sentencing Act changed the quantity

of crack cocaine necessary to trigger a 10-year mandatory minimum from 50 grams

to 280 grams and the quantity necessary to trigger a 5-year mandatory minimum




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from 5 grams to 28 grams. Fair Sentencing Act of 2010, Pub. L. No. 111 220, 124

Stat. 2372, § 2(a)(1)-(2); see also 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii).

      Notably, however, these amendments were not made retroactive to defendants

who were sentenced prior to enactment of the Fair Sentencing Act. United States v.

Berry, 701 F.3d 374, 377 (11th Cir. 2012); see also Dorsey, 567 U.S. at 281 (holding

that the Fair Sentencing Act applied to defendants who committed a crack cocaine

offense before August 3, 2010, but were sentenced after the Act’s effective date).

Further, the Fair Sentencing Act did not expressly make any changes to §

841(b)(1)(C), which provides for a term of imprisonment of not more than 20 years

for cases involving crack cocaine that do not fall within § 841(b)(1)(A) or (B). Fair

Sentencing Act of 2010 § 2(a); 21 U.S.C. § 841(b)(1)(C).

      In 2018, Congress enacted the First Step Act, which made retroactive the

statutory penalties for covered offenses enacted under the Fair Sentencing Act. See

First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, § 404. Under § 404(b)

of the 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 before August 3, 2010.” Id. § 404(a). The First Step Act further provides


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that “[n]othing in this section shall be construed to require a court to reduce any

sentence pursuant to this section,” and it precludes a court from entertaining a motion

for reduction of sentence if “the sentence was previously imposed . . . in accordance

with” the Fair Sentencing Act’s reduced statutory penalties. Id. § 404(c).

       Here, the district court did not err in denying White’s motion for a sentence

reduction.1 While the First Step Act expressly permits district courts to reduce a

previously imposed term of imprisonment, see Jones, 962 F.3d at 1297, White did

not commit a “covered offense” within the meaning of § 404(a) of the First Step Act

and, thus, was ineligible for relief. The offense for which he was convicted occurred

between August 2011 and March 2012, when he conspired to sell more than 280

grams of crack cocaine. Because he did not commit this offense before August 3,

2010, it was not a “covered offense” within § 404(a)’s definition. See First Step Act

of 2018 § 404(a). Further, White was sentenced in April 2013, so he already

received the benefit of the Fair Sentencing Act’s reduced penalties for crack cocaine.

See Fair Sentencing Act of 2010 § 2. Accordingly, we affirm as to this issue.

       White also raises a variety of additional arguments, but we are unable to

consider them at this stage of the proceedings. All of his remaining claims --


1
  We note that even though White filed his notice of appeal more than 14 days after the district
court entered the relevant order, outside the time limit proscribed by Federal Rule of Appellate
Procedure 4, that is inconsequential because the government does not dispute timeliness. See
United States v. Lopez, 562 F.3d 1309, 1313-14 (11th Cir. 2009) (holding that because the time
limits proscribed in the Federal Rules of Appellate Procedure are not jurisdictional in a criminal
case, an appeal may proceed if the government does not dispute the timeliness of the appeal).
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including his claims alleging ineffective assistance of counsel, various other

constitutional violations, the invalidity of his plea agreement and error in the district

court’s drug-quantity computation -- amount to “extraneous resentencing issues”

that are not properly before us at this time. See Bravo, 203 F.3d at 781-82; see also

Massaro v. United States, 538 U.S. 500, 504-05 (2003) (noting how ineffective-of-

assistance claims by federal prisoners should be presented in a 28 U.S.C. § 2255

proceeding). Accordingly, we will not consider these arguments, and affirm as to

his remaining claims as well.

      AFFIRMED.




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