            Case: 19-10830    Date Filed: 09/18/2019   Page: 1 of 5


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10830
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:09-cr-00304-SCB-AAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MARIO SINCLAIR JELKS,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (September 18, 2019)

Before ED CARNES, Chief Judge, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Mario Jelks filed a motion to reduce his sentence under the First Step Act of

2018. The district court denied his motion. This is Jelks’ appeal.

      In 2009 Jelks pleaded guilty to one count of possession with intent to

distribute at least 50 grams of cocaine base, also known as “crack” cocaine. With

that quantity Jelks was subject to the penalties in 21 U.S.C. § 841(b)(1)(A). The

government filed an information under 21 U.S.C. § 851(a) to establish that he had

been convicted of a felony drug offense before. As a repeat offender he faced a

statutory minimum sentence of 20 years in prison and a maximum sentence of life

in prison.

      The Presentence Investigation Report determined that Jelks had at least two

prior drug felony convictions and so was a “career offender” for the purposes of

U.S.S.G. § 4B1.1. Because Jelks faced a statutory maximum sentence of life in

prison, his base offense level under § 4B1.1(b) was 37. After adjusting for

acceptance of responsibility, the PSR calculated his guidelines range to be 262 to

327 months in prison. The court adopted that calculation of the range, but it

granted the government’s motion for a two-level reduction under U.S.S.G. § 5K1.1

and varied downward even further to account for the sentencing disparity between

powder cocaine and crack cocaine. It sentenced Jelks to 180 months in prison and

36 months of supervised release.




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      In January 2019 Jelks filed a motion to reduce his sentence under § 404 of

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

authorizes the district courts to reduce the sentences of crack cocaine defendants as

if § 2 of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372,

which reduced the penalties for distributing crack cocaine, had been in effect when

they committed their crimes. Under the Fair Sentencing Act Jelks would have

been sentenced under § 841(b)(1)(B) instead of § 841(b)(1)(A). He would have

faced a minimum sentence of 10 years in prison instead of 20, but his maximum

sentence still would have been life in prison. His guidelines range would not have

changed because he was still a career offender facing the same statutory maximum

sentence.

      The district court denied Jelks’ motion to reduce his sentence. It found that

he was not “entitled to relief” because his guidelines range remained the same even

though his statutory minimum sentence would have been lower under the Fair

Sentencing Act. The court also noted that its sentence had taken into account the

disparity between powder cocaine and crack cocaine, was below the statutory

minimum sentence that Jelks originally faced, and included a two-level reduction

requested by the government. As a result, the court declined to reduce Jelks’

sentence any further.




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       On appeal Jelks contends that the district court erred when it found that,

because his guidelines range would not change, he was “ineligible” for a sentence

reduction under the First Step Act. But that is not what the district court found.

The court’s order, when read in its entirety, makes clear that the court knew it had

discretion to reduce Jelks’ sentence and chose not to do so. If the court had

believed that it lacked the power to adjust Jelks’ sentence because his guideline

range was still the same, it could have stopped after calculating the range. But it

went on to say that Jelks was already serving a reduced sentence and that it did not

“intend” to reduce his sentence even more. Plus the government never argued

before the district court that the First Step Act does not apply to Jelks. Instead it

argued that “nothing in the First Step Act requires [the district court] to further

reduce Jelks’ sentence.” (Emphasis added). 1

       On that point the government is correct. Section 404 of the First Step Act

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

any sentence pursuant to this section.” So the statute allows the reduction of

certain sentences, but does not require them. Because the district court understood

its authority under the First Step Act and chose not to reduce Jelks’ sentence, it did

not abuse its discretion. Cf. United States v. Brown, 332 F.3d 1341, 1343 (11th



       1
         The government concedes that the district court could have reduced Jelks’ sentence
under the First Step Act if it had wanted to.
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Cir. 2003) (stating that we “review a district court’s decision whether to reduce a

sentence” for abuse of discretion, and that a court “by definition abuses its

discretion when it makes an error of law”) (quotation marks omitted).

      AFFIRMED.




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