               Case: 19-11353     Date Filed: 08/04/2020   Page: 1 of 7



                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-11353
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 0:04-cr-60158-JIC-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

CLARENCE WARD,

                                                                Defendant-Appellant.

                           ________________________

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

                                  (August 4, 2020)

Before MARTIN, ROSENBAUM and MARCUS, Circuit Judges.

PER CURIAM:

      Clarence Ward appeals the district court’s denial of his motion for a reduced

sentence under § 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 by
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failing to consider the 18 U.S.C. § 3553(a) factors and basing its decision solely on

the fact that he had already received executive clemency. After thorough review,

we affirm.

      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).

While district courts generally lack the inherent authority to modify a term of

imprisonment unless, for example, a statute expressly permits them to do so, 18

U.S.C. § 3582(c)(1)(B), the First Step Act expressly allows them to reduce a

previously imposed term of imprisonment in certain circumstances. Jones, 962 F.3d

at 1297. We review the district court’s denial of an eligible movant’s request for a

reduced sentence under the First Step Act for abuse of discretion. Id. at 1296. A

district court abuses its discretion by using an incorrect legal standard. Diveroli v.

United States, 803 F.3d 1258, 1262 (11th Cir. 2015).

      Before the First Step Act, Congress enacted the Fair Sentencing Act, 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 (“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


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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 from 5 grams to 28 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 conviction for

a serious felony drug offense who commits a violation involving 28 or more but less

than 280 grams of crack cocaine is subject to an imprisonment term of 10 years to

life and a mandatory minimum term of 8 years of supervised release. 21 U.S.C. §

841(b)(1)(A), (B). 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

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

was committed.” 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. §


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404(a). The statute makes clear 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.

962 F.3d at 1293. We began by agreeing with the parties that the movants who

received an executive grant of clemency were not ineligible for a reduction on that

basis. Id. at 1296. Next, 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 1301. We explained, however, that a movant’s

satisfaction of the “covered offense” requirement does not necessarily mean that the

district court is authorized to reduce his sentence because: (1) 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; and (2) 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. at 1303.

      We also emphasized that, although a district court may have the authority to

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

Id. at 1304. A district court has wide latitude to determine whether and how to

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


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quantity finding made for the purposes of relevant conduct. Id. at 1301, 1304. 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 §§ 2 and 3 of the Fair Sentencing Act. United States v. Denson, 963

F.3d 1080, 1089 (11th Cir. 2020).

       In initial sentencing proceedings and the like, where consideration of the §

3553(a) factors is mandatory, the district court need not state on the record that it

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

United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). 1 Indeed, 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). 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


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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error of judgment in considering the proper factors. United States v. Irey, 612 F.3d

1160, 1189 (11th Cir. 2010) (en banc). Further, 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).

      For starters, we note that under Jones, the commutation of Ward’s sentence

did not render him ineligible for a sentence reduction under the First Step Act. See

962 F.3d at 1296. We also note that the record reflects, and the parties agree, that

the district court’s denial of Ward’s motion was based on its determination that it

would not exercise its discretion to grant a sentence reduction regardless of whether

he was eligible for one. Thus, the only question before us is whether the district

court abused its discretion in denying Ward’s motion.

      We do not believe the district court abused its discretion in this case. In Jones,

we held that district courts may consider the § 3553(a) factors in connection with

sentence-reduction requests under the First Step Act, but we have not addressed

whether district courts must do so. See Jones, 962 F.3d at 1304. Regardless, even

if the district court was required to consider the § 3553(a) factors, the record

indicates that it adequately considered them. For example, the district court noted

that the Fair Sentencing Act changed the statutory penalties to which Ward was

subject; it commented that Ward’s range remained the same even after the Fair


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Sentencing Act; it observed that Ward’s current sentence was well below the

applicable guideline range; it highlighted the commutation of Ward’s sentence; and

it summarized the relevant procedural history, including Ward’s convictions. These

observations, taken together, indicate that the district court considered the kinds of

sentences available, Ward’s guideline range, the need for the sentence to reflect the

seriousness of the offense and provide just punishment, Ward’s history and

characteristics, and the nature and circumstances of the applicable offenses, among

other things. See 18 U.S.C. § 3553(a)(1)-(4). Thus, even if the district court was

required to consider the § 3553(a) factors, its consideration of those factors was

sufficient under our case law. See Dorman, 488 F.3d at 944.

      As for Ward’s claim that the district court did not expressly cite the § 3553(a)

factors, it was not required to discuss each of the factors or explicitly state that it had

considered each of them. See Kuhlman, 711 F.3d at 1326. Ward also argues that

the district court focused solely on the commutation of his sentence, but, as we’ve

detailed, the record makes clear that the district court considered a number of other

factors as well.    And to the extent the district court may have weighted the

commutation more heavily than other factors, it had the discretion to determine how

much weight to assign to each of the applicable factors. Croteau, 819 F.3d at 1309.

Accordingly, we affirm.

      AFFIRMED.


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