            Case: 19-12040   Date Filed: 02/25/2020   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12040
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 4:94-cr-00006-HLM-11



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

PHILLIP WYATT, SR.,

                                                          Defendant-Appellant.

                       ________________________

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

                             (February 25, 2020)

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

PER CURIAM:
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      Phillip Wyatt, Sr. was found guilty of conspiracy to possess with the intent

to distribute “mixtures containing” cocaine base (“crack cocaine”) in 1994. Based

on the charging and sentencing practices at the time, the indictment did not specify

the amount of drugs Wyatt trafficked, nor did the jury make any specific findings

about the drug amounts; instead, the Presentence Investigation Report attributed to

Wyatt “at least 1.5 kilograms” of crack cocaine. At sentencing Wyatt objected to

that amount, but the court overruled the objection and adopted the findings of the

PSR. Based on the sentencing guidelines in effect at that time, Wyatt was

sentenced to life in prison.

      In 2012 Wyatt moved to reduce his sentence under Amendment 750 to the

guidelines, which lowered the base offense level for crack cocaine offenses. The

court granted that motion in part and sentenced Wyatt to 360 months in prison.

      In 2019 Wyatt filed a motion to reduce his sentence under § 404 of the First

Step Act. The First Step Act says that a court “may, on motion of the

defendant, . . . impose a reduced sentence as if sections 2 or 3 of the Fair

Sentencing Act of 2010 . . . were in effect at the time the covered offense was

committed.” S. 756, 115th Cong., § 404(b) (2018) (emphasis added). But

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

sentence pursuant to this section.” S. 756, 115th Cong., § 404(c).




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       A covered offense is one that was modified by the Fair Sentencing Act of

2010. S. 756, 115th Cong., § 404(a). For purposes of this appeal, what matters is

that the Fair Sentencing Act modified crack cocaine sentences for offenses

involving 280 grams or less of crack cocaine. 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).

       The district court found that Wyatt was ineligible for relief under the

retroactive provisions of the Fair Sentencing Act of 2010 because his offense

involved more than 280 grams of crack cocaine. The court relied on the sentencing

finding that he had at least 1.5 kilograms of crack cocaine to make that

determination. The court also found, in the alternative, that Wyatt was not entitled

to a plenary resentencing and that, even if Wyatt was eligible for a reduced

sentence, it would not exercise its discretion to do so in light of the quantity of

drugs involved. Wyatt appeals.

       We review sentencing decisions for abuse of discretion. United States v.

Irey, 612 F.3d 1160, 1188 (11th Cir. 2010). But we review de novo questions of

statutory interpretation. United States v. Segarra, 582 F.3d 1269, 1271 (11th Cir.

2009). “A district court by definition abuses its discretion when it makes an error

of law.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).




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      On appeal, Wyatt contends that the district court should have considered

only his charged conduct in determining whether his offense was a covered offense

and that, because the indictment charged him with an unspecified amount of crack

cocaine, his offense fell within the covered offenses of the First Step Act. He

argues that the district court erred in considering the 1.5 kilograms of crack

cocaine attributed to him for sentencing purposes and that such finding is now

unconstitutional because it relies on facts that were determined by the court, not a

jury. See Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New Jersey,

530 U.S. 466 (2000). And, he argues, because his sentence would now be

unconstitutional, the district court had no choice but to resentence him. He also

argues that the district court erred in finding that the First Step Act did not allow

for a plenary resentencing.

      Although we have held that Alleyne and Apprendi do not apply retroactively

on collateral review, see Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th

Cir. 2014), we have not addressed whether and to what extent Alleyne and

Apprendi apply to cases involving motions for reduction of sentences under § 404

of the First Step Act. And we need not decide that question now.

      Here, the district court’s order makes clear that, even if Wyatt’s offense did

qualify for reduction, it would not have exercised its discretion to do so. Wyatt

attempts to cabin the district court’s discretion by arguing that because his newly


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calculated maximum sentence would be below his current sentence, the court must

reduce his sentence under § 404 of the First Step Act. But that flies in the face of

the plain language of the act. Congress made clear that courts “may . . . impose a

reduced sentence,” but that “[n]othing in this section shall be construed to require a

court to reduce any sentence.” S. 756, 115th Cong., § 404(b), (c) (emphasis

added). We take Congress at its word that “nothing” in § 404 of the First Step Act

required the district court to reduce Wyatt’s sentence. “Nothing” means nothing.

The district court did not abuse its discretion by choosing not to do so here.

      AFFIRMED.




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