                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-2031
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                   Antonio Harris

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: January 17, 2020
                               Filed: June 5, 2020
                                 ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

LOKEN, Circuit Judge.

      In 2008, a jury convicted Antonio Harris of violating 21 U.S.C. § 841(a)(1)
when he possessed with intent to distribute more than 50 grams of cocaine base
(crack cocaine). At sentencing, Harris was found to be a career offender under USSG
§ 4B1.1, producing an advisory guidelines sentencing range of 360 months to life
imprisonment. District Judge Carol E. Jackson varied downward and sentenced
Harris to 240 months imprisonment, the statutory mandatory minimum sentence
because the government had filed an information disclosing his prior Missouri
conviction for possession of marijuana with intent to distribute. See 21 U.S.C.
§§ 841(b)(1)(A)(iii) and 851 (2008). We affirmed the conviction and sentence.
United States v. Harris, 557 F.3d 938 (8th Cir. 2009). In 2019, Harris filed a motion
for a sentence reduction under the First Step Act of 2018. The district court1 ruled
that Harris was eligible for a First Step Act reduction and reduced his sentence to 216
months. Harris appeals, arguing the court erred in not granting a greater reduction.
We affirm.

                                   I. Background

      The Fair Sentencing Act of 2010 reduced the mandatory minimum sentencing
disparities between crack and powder cocaine offenses. The Act’s more lenient
provisions were held not to apply to those sentenced before its enactment. Dorsey v.
United States, 567 U.S. 260, 282 (2012). Congress and the President responded by
enacting the First Step Act in 2018. At issue here is Section 404 which provides:

      (a) DEFINITION OF COVERED OFFENSE.--In this section, the term
      “covered offense” means a violation of a Federal criminal statute, the
      statutory penalties for which were modified by section 2 or 3 of the Fair
      Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372), that was
      committed before August 3, 2010.

      (b) DEFENDANTS PREVIOUSLY SENTENCED.--A court that
      imposed a sentence for a covered offense may, on motion of the
      defendant, the Director of the Bureau of Prisons, the attorney for the
      Government, or the court, impose a reduced sentence as if sections 2 and
      3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat.
      2372) were in effect at the time the covered offense was committed.


      1
       The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.

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      (c) LIMITATIONS.--No court shall entertain a motion made under this
      section to reduce a sentence if the sentence was previously imposed or
      previously reduced in accordance with the amendments made by
      sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-
      220; 124 Stat. 2372) or if a previous motion made under this section to
      reduce the sentence was, after the date of enactment of this Act, denied
      after a complete review of the motion on the merits. Nothing in this
      section shall be construed to require a court to reduce any sentence
      pursuant to this section.

First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018).
Harris is eligible for First Step Act relief because, had the Fair Sentencing Act been
in effect when he was sentenced, the mandatory minimum for his drug offense would
have been ten rather than twenty years. See 21 U.S.C. § 841(b)(1)(B); United States
v. McDonald, 944 F.3d 769, 772 (8th Cir. 2019).

       As Judge Jackson had retired, Harris’s First Step Act motion was reassigned
to District Judge John A. Ross. The Probation Office reported to Judge Ross that
Harris’s guidelines sentencing range as a career offender remained 360 months to life
imprisonment. The report also summarized Harris’s time in prison, including
completion of business and wellness courses and seven conduct violations. Harris
submitted a Response arguing that “Mr. Harris today does not qualify as a career
offender” and that his postsentencing rehabilitation warrants a sentence at the bottom
of his current guidelines range, 110 months imprisonment (the mandatory minimum
sentence under the Fair Sentencing Act is 120 months). Judge Ross then held a
motion hearing, determining that Harris’s presence was not required.

       Early in the hearing, Judge Ross asked defense counsel, “Do you agree though
that the guideline range here today is still 360 months to life?” Counsel replied:

             Well, if the Court determines he is still a career offender, yes,
      that’s a guideline. But what I wanted to do is point out to the Court

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      today Mr. Harris would not be a career offender. So I’m asking the
      Court to take that into consideration under the 3553(a) factors . . . to
      further reduce his sentence. . . . Today under the First Step Act . . . he
      has a 120 month mandatory minimum. So I’m asking the Court to
      exercise discretion and vary downward to 120 months.

The government agreed the court had First Step Act discretion to reduce Harris’s
sentence to 120 months but urged the court not to reduce the 240-month sentence,
which was ten years below the bottom of his guidelines range.

       In ruling on the motion, Judge Ross explained he had carefully reviewed the
entire record because the case had been reassigned. The court recognized its
discretion to reduce Harris’s sentence to 120 months, the Fair Sentencing Act
mandatory minimum. The court noted “very troubling circumstances around his
conviction and sentencing” and stated:

            Judge Jackson . . . noted all of the things that the Government has
      noted about his history, his criminal background, his violations while in
      the State Department of Corrections, and yet the judge still chose to
      substantially vary downward. . . . So the circumstances around his
      sentence simply don’t indicate that that sentence was in any way
      excessive . . . . [T]here is just nothing in that sentence that would
      indicate under the First Step Act [it] was excessive or unduly harsh. . . .

             So that would indicate to me that there should be no reduction in
      this case. Having said that, I do look at . . . is there something in the
      record . . . since he has been confined, that should otherwise cause the
      Court to consider any reduction of sentence.

The court invited and received further argument from counsel, took the matter under
advisement, and issued a written order reducing Harris’s sentence to 216 months and
8 years of supervised release. The Order explained, “While the Court recognizes



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[Harris] continues to have some violations of prison rules, he does appear to have
made significant progress in completing job training and educational programs.”

                                    II. Discussion

       On appeal, Harris first argues the district court improperly “tethered” the
reduced sentence to an inflated 240 month mandatory minimum that the First Step
Act reduced to 120 months. “Tethered” is counsel’s choice of words. It has no legal
or sentencing bona fides; worse yet, it is analytically wrong. The district court simply
began its analysis, as the First Step Act required, with the sentence sought to be
reduced. The court accurately noted that sentence was a substantial downward
variance from the applicable guideline range and concluded the initial variance had
eliminated excessiveness the First Step Act was intended to remedy. In evaluating
the existing sentence, the court also considered postsentence rehabilitation and the
18 U.S.C. § 3553(a) sentencing factors, consistent with our First Step Act decision
in United States v. Williams, 943 F.3d 841 (8th Cir. 2019); see United States v. Shaw,
957 F.3d 734, 740-42 (7th Cir. 2020); United States v. Allen, 956 F.3d 355, 357-58
(6th Cir. 2020). There was no procedural or legal error. See First Step Act § 404(c)
(“Nothing in this section shall be construed to require a court to reduce any sentence
pursuant to this section.”).

      Harris further argues the 216 month sentence is substantively unreasonable,
arguing the district court gave significant weight to the improper factor of the
repudiated mandatory minimum and failed to give sufficient weight to the fact that
he would not be a career offender if resentenced under the current advisory
guidelines. We review this issue under a deferential abuse-of-discretion standard.
United States v. Huston, 744 F.3d 589, 593 (8th Cir. 2014). Harris does not argue the
current advisory guidelines must be applied in First Step Act resentencing. Therefore,
we need not consider this contention, which would be inconsistent with our decision
in Williams and has been rejected by other circuits. See United States v. Foreman,

                                          -5-
958 F.3d 506, 510-12 (6th Cir. 2020); United States v. Hegwood, 934 F.3d 414, 418-
19 (5th Cir. 2019); United States v. Carter, 792 F. App’x 660, 663-64 (11th Cir.
2019) (unpublished). However, the § 3553(a) factors in First Step Act sentencing
may include consideration of the defendant’s advisory range under the current
guidelines. Cf. United States v. Smith, 954 F.3d 446, 452 & n.8 (1st Cir. 2020).

       Harris argues his sentence is substantively unreasonable because it is almost
ten years higher than his range of 110-137 months under the current advisory
guidelines. Harris made the district court aware that he may not be a career offender
under the current guidelines. But after reviewing the entire record, the court
concluded that the initial 240-month sentence reflected substantial leniency given
Harris’s lack of acceptance of responsibility, likely perjury at trial, and disrespectful
conduct at sentencing. Thus, viewed from the First Step Act’s perspective, the
sentence was not excessive or harsh. The court then recognized that Harris’s
postsentence conduct reflected positive educational and vocational rehabilitation
efforts but also numerous conduct violations while in prison. Balancing these
positives and negatives, the court granted Harris a significant 24-month sentence
reduction. A district court has wide latitude to weigh the § 3553(a) factors and assign
some factors greater weight than others in determining an appropriate sentence. See,
e.g., United States v. Reynolds, 643 F.3d 1130, 1136 (8th Cir. 2011). The court did
not abuse its substantial sentencing discretion or impose a substantively unreasonable
sentence by declining to reduce Harris’s sentence below 216 months imprisonment.

      The judgment of the district court is affirmed.
                     ______________________________




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