           Case: 19-13171   Date Filed: 08/05/2020   Page: 1 of 15



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                            No. 19-13171
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:06-cr-00326-LSC-HNJ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

GERALD SMITH, JR.,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (August 5, 2020)

Before JILL PRYOR, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:
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         Gerald Smith, Jr., 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. No.

115-391, 132 Stat. 5194, 5222 (“First Step Act”), arguing that the district court

abused its discretion because it was required to consider the factors in 18 U.S.C.

§ 3553(a) and did not account for his exemplary post-sentencing conduct and

intervening changes to the Sentencing Guidelines and his statutory punishment

range.

         In 2006, a grand jury indicted Smith for knowingly and intentionally

distributing five or more grams of a mixture and substance containing a detectable

amount of cocaine base, i.e., crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B). The government filed notice of its intent to rely on Smith’s three

prior felony drug convictions to enhance his sentence. See 21 U.S.C. § 851(a).

Smith pleaded guilty pursuant to a written plea agreement with the government.

         A probation officer prepared a presentence investigation report (“PSI”), in

which she stated that Smith had sold 5.7 grams of crack cocaine to a confidential

law enforcement source on March 16, 2006. Because the offense involved more

than five but less than twenty grams of crack cocaine, the probation officer

calculated Smith’s base offense level as 26, pursuant to U.S.S.G. § 2D1.1(c)(7).

The probation officer designated Smith as a career offender under U.S.S.G. §

4B1.1 because he had previously been convicted of at least two controlled


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substance offenses, thus resulting in a career offender offense level of 34, reduced

to 31 by acceptance of responsibility. This, combined with a criminal history

category of VI, yielded an advisory guideline range of 188-235 months.1

       At sentencing, the district court, following the PSI, calculated Smith’s total

offense level as 31, criminal history category as VI, and guideline imprisonment

range as 188 to 235 months. The district court calculated Smith’s guideline

supervised release term as eight years. Then, the district court explained that it had

a responsibility under 18 U.S.C. § 3553(a) to impose a sentence that was sufficient

but not greater than necessary to accomplish the sentencing goals set forth in that

statute. The district court noted that Smith had an extensive criminal record but

had previously received lenient punishments. Further, Smith was selling drugs in

March 2006, possessed over a kilogram of cocaine in April 2006, and poisoned

other people by choosing to sell drugs. A life sentence was warranted, the district

court stated, because Smith had already been given so many chances, but the

district court explained that it would not impose a life sentence. Instead, the

district court sentenced Smith to 235 months’ imprisonment, explaining that a

sentence at the high end of the guideline range was appropriate given the nature


1
        The probation officer actually miscalculated the guideline range in a manner beneficial to
Smith. She erroneously believed the statutory maximum sentence was 40 years, which yielded a
career offender offense level of 34, which she used. Actually, because the statutory maximum
was life in prison, the career offender offense level should have been 37, which, reduced by
acceptance of responsibility to 34, should have yielded a guideline range of 262-327 months.
None of the parties nor the judge at sentencing were aware of this error.
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and circumstances of the offense, Smith’s history and characteristics, and the need

to reflect the seriousness of the offense, promote respect for the law, provide just

punishment, deter future criminal conduct, and protect the public. The district

court also imposed 8 years of supervised release.

       We review de novo 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). 2 We review the district court’s denial of an eligible movant’s request for a

reduced sentence under the First Step Act for an abuse of discretion. Id. A district

court abuses its discretion when it “applies an incorrect legal standard.” Diveroli v.

United States, 803 F.3d 1258, 1262 (11th Cir. 2015) (quoting Winthrop-Redin v.

United States, 767 F.3d 1210, 1215 (11th Cir. 2014)).

       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 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

powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat.


       2
         In Jones, we resolved four separate appeals—Nos. 19-11505, 19-10748, 19-11955, and
19-12847—in a single opinion. For clarity, we will refer to the case as No. 19-11505, which is
the case number associated with appellant Steven Jones.
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2372, 2372 (“Fair Sentencing Act”); see Dorsey v. United States, 567 U.S. 260,

268-69 (2012) (detailing the history that led to the enactment of the Fair

Sentencing Act, including the Sentencing Commission’s criticisms that the

disparity between crack cocaine and powder cocaine offenses was 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 fifty grams to 280 grams and the quantity necessary to trigger a

five-year mandatory minimum from five grams to twenty-eight grams. Fair

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

Accordingly, the current version of § 841(b)(1) provides that an individual with a

prior felony drug offense who commits a violation involving less than twenty-eight

grams of crack cocaine is subject to an imprisonment term of zero to thirty years

and a mandatory minimum term of six years of supervised release. 21 U.S.C.

§ 841(b)(1)(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 retroactive the

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


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and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense

was committed.” Id. § 404(b). The act 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 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).

      In Jones, we considered the appeals of four federal prisoners whose motions

for a reduction of sentence pursuant to § 404(b) were denied in the district courts.

See Jones, 962 F.3d at 1293. First, we held that a movant was convicted of a

“covered offense” if he was convicted of a crack-cocaine offense that triggered the

penalties in § 841(b)(1)(A)(iii) or (B)(iii). Id. at 1300. Interpreting the First Step

Act’s definition of a “covered offense,” we concluded that the phrase “the statutory

penalties for which were modified by section 2 or 3 of the Fair Sentencing Act”

(the “penalties clause”) modifies the term “violation of a Federal criminal statute.”

Id. at 1299; see First Step Act § 404(a). Thus, “a movant’s offense is a covered

offense if section two or three of the Fair Sentencing Act modified its statutory

penalties.” Jones, 962 F.3d at 1298. Because section two of the Fair Sentencing

Act “modified the statutory penalties for crack-cocaine offenses that have as an

element the quantity of crack cocaine provided in subsections 841(b)(1)(A)(iii) and


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(B)(iii),” a movant has a covered offense if he was sentenced for an offense that

triggered one of those statutory penalties. Id.

      Next, we explained that a movant’s satisfaction of the “covered offense”

requirement does not necessarily mean that the district court is authorized to

reduce his sentence. Id. at 1303. Specifically, the “as if” qualifier in § 404(b) of

the First Step Act, which states that any reduction must be “as if sections 2 and 3

of the Fair Sentencing Act . . . were in effect at the time the covered offense was

committed,” imposes two limitations on the district court’s authority. Id.

(quotation marks omitted) (alteration in original); see First Step Act § 404(b).

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. Jones, 962 F.3d at 1303. Second, in determining what a movant’s

statutory penalty would have been under the Fair Sentencing Act, the district court

is bound by a previous drug-quantity finding that was used to determine the

movant’s statutory penalty at the time of sentencing. Id. Moreover, the

Constitution does not prohibit district courts from relying on judge-found facts that

triggered statutory penalties prior to Apprendi.3 See id. at 1303-04.

      Applying these limitations, we held that if a movant’s sentence necessarily

would have remained the same had the Fair Sentencing Act been in effect—in


      3
          Apprendi v. New Jersey, 530 U.S. 466 (2000).
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other words, if his sentence was equal to the mandatory minimum imposed by the

Fair Sentencing Act for the quantity of crack cocaine that triggered his statutory

penalty—then the Fair Sentencing Act would not have benefitted him, and the First

Step Act does not authorize the district court to reduce his sentence. Id. at 1303.

      Applying this “as-if” framework, we vacated and remanded the denials of

two of the movants’ motions because the district courts had authority to reduce

their sentences under the First Step Act, but it was unclear whether the courts had

recognized that authority. Id. at 1304-05. Specifically, as to movant Allen, we

noted that the district court denied the motion because Allen’s guideline range

remained the same based on the drug-quantity finding made at sentencing, and his

sentence was already at the low-end of that guideline range, such that the court

may have incorrectly concluded that he was not eligible for a further reduction. Id.

at 1305. As to movant Jones, however, we affirmed the denial of his motion,

explaining that, although he was convicted of a covered offense, he had only raised

the meritless argument that he was entitled to a reduced sentence based on

Apprendi because his conviction was not supported by a drug-quantity finding by a

jury. Id. at 1304.

      Finally, we noted that although a district court may have the authority to

reduce a sentence under § 404 of the First Step Act, it is not required to do so. Id.

We held that a district court has wide latitude to determine whether and how to


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exercise its discretion, and that it may consider the § 3553(a) factors and a previous

drug-quantity finding made for the purposes of relevant conduct. Id. The First Step

Act does not, however, authorize a district court to conduct a plenary or de novo

resentencing in which it reconsiders sentencing guideline calculations unaffected

by sections 2 and 3 of the Fair Sentencing Act. United States v. Denson, 963 F.3d

1080, 1089 (11th Cir. 2020).

      In this appeal, Smith first argues that the district court erred by failing to

consider all of the § 3553(a) sentencing factors. We need not decide in this case

whether, in the context of a sentence reduction proceeding pursuant to the First

Step Act, a district court is obligated to consider all § 3553(a) factors. As noted

above, in Jones we held that a district court may consider the § 3553(a) factors, but

we have not expressly addressed whether a district court must do so. Nevertheless,

even in situations where consideration of the § 3553(a) factors is mandatory, it is

not necessary for the district court to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.

United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). In addition, a

sentence may be affirmed so long as the record indicates that the district court

considered a number of the factors. See United States v. Dorman, 488 F.3d 936,

944 (11th Cir. 2007) (affirming appellant’s sentence because even though the

district court did not discuss each of the sentencing factors, the record showed that


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it considered several of them). Moreover, the weight given to any of the § 3553(a)

factors is committed to the sound discretion of the district court. United States v.

Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Even so, “[a] district court abuses

its discretion when it (1) fails to afford consideration to relevant factors that were

due significant weight, (2) gives significant weight to an improper or irrelevant

factor, or (3) commits a clear error of judgment in considering the proper factors.”

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quoting

United States v. Campa, 459 F.3d 1121, 1174 (11th Cir.2006)). Furthermore, a

district court’s unjustified reliance on any one § 3553(a) factor to the detriment of

all the others “may be a symptom of an unreasonable sentence.” United States v.

Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).

      Under § 3553(a), a district court’s sentence must be sufficient, but not

greater than necessary, to achieve the goals of sentencing, which are: reflecting the

seriousness of the offense, promoting respect for the law, providing just

punishment, deterring future criminal conduct, protecting the public, and providing

the defendant with any needed training or treatment. 18 U.S.C. § 3553(a). Section

3553(a) also requires district courts to consider the nature and circumstances of the

offense, the defendant’s history and characteristics, the kinds of sentences

available, the Sentencing Guidelines, any pertinent policy statement, the need to




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avoid disparate sentences for defendants with similar records, and the need to

provide restitution to any victims. Id.

      The district court did not abuse its discretion in denying Smith’s motion

because regardless of whether it was required to consider the § 3553(a) factors, it

did, in fact, consider a number of the factors in denying a reduction. In denying

Smith’s motion, the district court highlighted several factors. For example, the

district court noted that Smith’s guideline imprisonment range was unchanged by

the Fair Sentencing Act and the First Step Act, which indicates that the district

court considered the kinds of sentences available and the Sentencing Guidelines.

See id. § 3553(a)(3), (4). The district court also noted Smith’s extensive criminal

history and the more lenient punishments that he had received in the past. This

indicates that the district court considered Smith’s history and characteristics. See

id. § 3553(a)(1). Moreover, the district court noted that Smith possessed over one

kilogram of cocaine less than one month after he committed the offense at issue

here, which indicates that the district court considered the nature and

circumstances of the offense. See id. § 3553(a)(1). Thus, even if a § 3553(a)

analysis was required, the district court’s assessment was sufficient because the

record indicates that it considered a number of the § 3553(a) factors. See Dorman,

488 F.3d at 944.




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        In addition, although the district court did not explicitly discuss Smith’s

post-sentencing conduct and all of the intervening changes to the Sentencing

Guidelines and the applicable statutory scheme, it was not required to do so, and

the record as a whole indicates that it was sufficiently cognizant of those factors.

The district court did not discuss these factors in denying Smith’s motion, but it

was not required to, as district courts are not required to discuss each § 3553(a)

factor even when such an analysis is mandatory. See Kuhlman, 711 F.3d at 1326.

Furthermore, to the extent that Smith argues that the district court gave insufficient

weight to these factors, it should be noted that the weight assigned to each of the

applicable factors was committed to the district court’s discretion. See Croteau,

819 F.3d at 1309. Moreover, the fact that Smith raised these factors in a filing that

the district court specifically requested suggests that the district court considered

them.

        Smith also argues that the district court’s comment that “[n]othing has

changed” indicates that it did not consider his post-sentencing conduct and

intervening changes to the Sentencing Guidelines and statutory framework.

Although one could arguably interpret the district court’s comment that “[n]othing

has changed” as Smith does, the context of the comment itself, as well as the

record as a whole, leave us confident of a different interpretation. The comment

immediately followed, in the same paragraph, with the district court’s statement


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that the guideline imprisonment range (188-235 months’ imprisonment) had not

changed and its summary of factors which explained why he had at sentencing

imposed the sentence at the high end of that same guideline range. Thus, the

context of the comment indicates merely the court’s opinion that the guideline

imprisonment range had not changed, nor had the facts which led him originally to

impose a sentence at the high end. And it is even clearer from the record as a

whole that this was the district court’s meaning. When Smith’s counsel filed an

unopposed motion for sentence reduction, he urged the district court to impose a

sentence of 188 months. Doc. 59 at 1. The district court responded with an order

noting that the guideline imprisonment range—188 to 235 months’

imprisonment—had not changed. The order required both parties to file a response

with the court addressing why it should reduce Smith’s sentence to the low end of

the range when the court had refused that same request at sentencing. Doc. 61 at

1-2. In the responsive briefs of both the government and Smith’s counsel, it was

clear that the statutory sentencing range had changed as a result of the Fair

Sentencing and First Step Acts, and that Smith was eligible for a sentence

reduction. Smith’s brief told the district court that this was undisputed. Doc. 64 at

1. We are confident that the district court was well aware of the changed statutory

minimum and maximum prison sentences. The statutory imprisonment range at

sentencing was ten years minimum to life maximum, but under the Fair Sentencing


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and First Step Acts, the statutory imprisonment range at the time of Smith’s motion

was zero to thirty years. Smith’s brief to the district court merely urged the court

to consider the § 3553(a) factors (including Smith’s exemplary accomplishments in

prison) and urged the court to exercise its discretion to reduce his sentence. Thus,

we are confident that the district court’s “[n]othing has changed” comment meant

only that the guideline imprisonment range had not changed nor had the reasons

persuading the judge that the original 235-month sentence was appropriate.

       Finally, Smith argues that the district court incorrectly calculated his

statutory term of supervised release. The applicable statutory supervised release

range has changed because while Smith was originally subject to a mandatory

minimum supervised release term of eight years, under the Fair Sentencing and

First Step Acts, he is now subject to a mandatory minimum supervised-release

term of only six years. See 21 U.S.C. § 841(b)(1)(B), (C). Nevertheless, Smith’s

argument that the district court miscalculated his statutory supervised release term

is not supported by the record. Although the district court did not expressly

address supervised release, the record is clear that the district court was aware of

the change in the statutory mandatory minimum supervised release. The briefing

to the district court specifically called to the district court’s attention that the

mandatory minimum supervised release term had changed from eight years to six

years. And we have already explained that the district court’s comments—that the


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guidelines range had not changed and that “[n]othing had changed”—referred only

to the guidelines range for imprisonment and to the reasons which prompted the

court at sentencing to impose a prison term at the high end of the guidelines range.

In light of our confidence that the district court was aware of the changed statutory

framework—with respect to statutory ranges of both prison and supervised release

sentences—the district court’s silence with respect to supervised release provides

no basis to infer error. Cf. Kuhlman, 711 F.3d at 1326.

      To conclude, we note that, by its express terms, nothing in § 404 of the First

Step Act “require[s] a court to reduce any sentence,” First Step Act § 404(c), or

“authorize[s] a district court to conduct a plenary or de novo resentencing,”

Denson, 963 F.3d at 1089. Against this backdrop, nothing in the record suggests

unreasonableness or an abuse of discretion by the district court in considering

Smith’s First Step Act motion.

      AFFIRMED.




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