           Case: 19-10918   Date Filed: 10/18/2019   Page: 1 of 11


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10918
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:05-cr-00206-WS-B-5



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

WILLIE EARL CARTER,

                                                         Defendant-Appellant.

                       ________________________

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

                            (October 18, 2019)

Before MARCUS, FAY and HULL, Circuit Judges.

PER CURIAM:
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      Willie Earl Carter, proceeding pro se, appeals the district court’s denial of

his motion to reduce his sentence. We affirm.

                                I. BACKGROUND

      In 2006, a federal grand jury issued a second superseding indictment

charging Carter with: (1) conspiracy to possess with intent to distribute morphine,

oxycodone, hydrocodone, hydromorphone, methadone, and more than 50 grams of

crack cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count 1);

(2) possession with intent to distribute morphine, in violation of 21 U.S.C.

§§ 841(a)(1), 860 and 18 U.S.C. § 2 (Count 15); and (3) possession with intent to

distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 860 and 18 U.S.C.

§ 2 (Count 24). The indictment alleged that the death of Jasen Johns on November

27, 2001, resulted from the use of the controlled substances distributed during the

course of the conspiracy charged in Count 1.

      The government filed an information stating that Carter previously had been

convicted of a felony drug offense and was therefore subject to enhanced penalties

under 21 U.S.C. § 851. On March 16, 2006, after trial, the jury found Carter guilty

of Counts 1, 15, and 24. The jury further found that: (1) the conspiracy in Count 1

involved all of the charged substances, including 50 grams or more of crack

cocaine; (2) Carter was a member of the conspiracy on November 27, 2001; and

(3) the death of Jasen Johns resulted from the use of the controlled substances


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charged in Count 1. Using the 2005 Guidelines Manual, the Presentence

Investigation Report (“PSI”) assigned Carter a base offense level of 43, pursuant to

U.S.S.G. § 2D1.1(a)(1), because Carter had a prior conviction for a similar offense

and a death resulted from the use of the substance involved in his offense. 1 The

PSI assigned Carter a criminal history category of I. This resulted in a guideline

imprisonment range of life. For the same reasons—Carter had a prior felony drug

conviction and a death resulted from the use of the controlled substance involved

in the offense—the statutory minimum penalty for Count 1, pursuant to 21 U.S.C.

§ 841(b)(1)(A), was also life imprisonment.

       Carter objected to the PSI, particularly its finding that he was subject to a

statutory minimum penalty of life imprisonment and to a base offense level of 43

under the guidelines. He argued that the evidence at trial was insufficient to find

that he participated in the conspiracy; therefore, the jury’s findings as to the

amount of controlled substances involved and Johns’ death did not apply to him.

He further objected that he did not have a qualifying prior felony drug conviction.

In response to Carter’s objections, the probation officer stated that the PSI was




       1
         The PSI also found that Carter was subject to a two-level increase in his base offense
level, pursuant to U.S.S.G. § 2D1.1(b)(1), because a dangerous weapon was possessed. Thus,
his calculated base offense level was 45. However, under the Guidelines, an offense level of
more than 43 is to be treated as an offense level of 43. U.S.S.G. § 5A1.1, cmt. (n.2).
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reflective of the jury’s findings on Count 1 and that she had received a certified

copy of Carter’s prior conviction.

      At sentencing on August 4, 2006, the district court overruled Carter’s

objections as to Count 1, finding that the evidence presented at trial was sufficient

to support Carter’s conviction and the jury’s finding that Johns’ death resulted

from the use of the controlled substance involved in the offense. It further found

that Carter previously was convicted of a felony drug offense. As a result, the

enhanced penalty provision of § 841(b)(1)(A) applied, and Carter was subject to a

mandatory life sentence on Count 1. The district court sentenced Carter to a total

imprisonment term of life, consisting of a life sentence as to Count 1 and

concurrent 60-year sentences on each of Counts 15 and 24.

      Carter appealed his convictions and sentences, arguing, in part, that the

evidence was not sufficient to support his convictions and that he was not properly

subject to a base offense level of 43 under the guidelines—or the enhanced penalty

provisions of § 841(b)(1)(A)—because the drugs that killed Johns did not come

from the conspiracy and he did not have a qualifying prior conviction. United

States v. Westry, 524 F.3d 1198, 1210, 1218 (11th Cir. 2008). We affirmed,

holding that the evidence supported the existence of a conspiracy and Carter’s

participation in it. Id. at 1212-13. We further held that Carter was properly subject

to an enhanced penalty under the guidelines and § 841(b)(1)(A) because he had a


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qualifying prior felony drug conviction and the evidence supported the jury’s and

district court’s conclusion that Johns’ death resulted from drugs that were involved

in the offense. Id. at 1220 & n.12.

      In February 2019, Carter, proceeding pro se, filed the instant “Motion

pursuant to S. 3747-First Step Act of 2018 Sec. 404. Application of Fair

Sentencing Act.” He argued that his sentence should be reduced under Section

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

(hereinafter, “First Step Act”), because he was convicted of a covered offense

before the enactment of the Fair Sentencing Act. He argued that if he had been

sentenced after the Fair Sentencing Act had taken effect, then he would have been

sentenced pursuant to 21 U.S.C. § 841(b)(1)(B), which provides for a lower

mandatory minimum sentence than § 841(b)(1)(A). Further, he argued that the

death enhancement—under both § 841(b)(1)(A) and U.S.S.G. § 2D1.1(a)(1)—

would not apply if he were sentenced under today’s laws, because the Supreme

Court held in Burrage v. United States, 571 U.S. 204, 218-19, 134 S. Ct. 881, 892

(2014), that the “death results” penalty enhancement provision under 21 U.S.C.

§ 841(b) did not apply unless the drug distributed by the defendant was a “but-for”

cause of death.

      The district court denied Carter’s motion, concluding that he was not eligible

for relief under the First Step Act. It found that, even after treating him as if


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sections 2 and 3 of the Fair Sentencing Act were in effect at the time of his offense,

his guideline range was still life, and the statutory maximum that he faced under 21

U.S.C. § 841(b)(l)(B) was still life “because the jury found beyond a reasonable

doubt that Johns’ death resulted from the use of controlled substances that Carter

conspired to possess with intent to distribute.” The district court stated that Carter

could not “relitigate the death enhancement” through a First Step Act motion.

      On appeal, Carter argues that section 404 of the First Step Act applies to him

because he was convicted of a covered offense before August 3, 2010. As a result,

he contends, the district court could have, as the First Step Act permits, “impose[d]

a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in

effect at the time” he committed the underlying offense. The use of the word

“impose,” in Carter’s estimation, grants the district court broader authority than

that in 18 U.S.C. § 3582(c), such that a district court could conduct a “full

resentencing” in light of all relevant factors, including subsequent changes in law

beyond those mandated by sections 2 and 3 of the Fair Sentencing Act. Along

those lines, he argues that the neither the guidelines nor statutory “death

enhancement” would apply if he were resentenced under today’s laws, because of

the Supreme Court’s holding in Burrage.




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                                 II. DISCUSSION

      We review the district court’s authority to modify a sentence de novo. See

United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010) (analyzing

whether the district court had authority to modify a sentence under 18 U.S.C.

§ 3582(c)(1)(B)). A district court may not modify an imprisonment sentence

except under the narrow circumstances listed in § 3582(c). See id. at 1194-95. As

relevant here, district courts are permitted to modify a term of imprisonment to the

extent expressly permitted by statute. See 18 U.S.C. § 3582(c)(1)(B).

      Prior to both the First Step Act and the Fair Sentencing Act, a person

convicted of a drug trafficking offense involving at least 5 grams but less than 50

grams of crack cocaine was subject to the sentencing provisions in 21 U.S.C.

§ 841(b)(1)(B), while a person convicted of a similar offense involving 50 grams

or more of crack cocaine was subject to the provisions of § 841(b)(1)(A). See 21

U.S.C. § 841(b)(1)(A), (b)(1)(B) (2006). Subsection (b)(1)(A) provided for a

mandatory minimum sentence of 10 years’ imprisonment, while subsection

(b)(1)(B) provided for a mandatory minimum sentence of 5 years’ imprisonment.

Id.

      However, both subsections provided for increased mandatory minimum

sentences where certain factual predicates were present. As relevant here, both

subsections provided for a mandatory life sentence where the defendant committed


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the underlying violation after a prior conviction for a felony drug offense had

become final, and death or serious bodily injury resulted from the use of the

controlled substance that was the subject of the underlying violation. Compare 21

U.S.C. § 841(b)(1)(A) (2006), with 21 U.S.C. § 841(b)(1)(B) (2006).

      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. See Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372

(2010) (hereinafter “Fair Sentencing Act”). Section 2 of the Fair Sentencing Act

raised the quantity of crack cocaine necessary to trigger a 10-year mandatory

minimum under § 841(b)(1)(A) from 50 grams to 280 grams and the quantity

necessary to trigger a 5-year mandatory minimum under § 841(b)(1)(B) from 5

grams to 28 grams. Id. § 2. Notably, however, the Fair Sentencing Act did not

modify the factual predicates necessary to trigger a mandatory life sentence under

either subsection, regardless of the quantity of drugs involved in the offense. See

generally Fair Sentencing Act. In addition, section 3 amended 21 U.S.C. § 844(a)

to eliminate a mandatory minimum sentence for simple possession of crack

cocaine. Id. § 3. Prior to the enactment of the First Step Act, these changes did

not apply retroactively to offenders sentenced before August 3, 2010. See Dorsey

v. United States, 567 U.S. 260, 263-64, 132 S. Ct. 2321, 2326 (2012).




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      Section 404 of the First Step Act made the changes to mandatory minimum

sentences for crack cocaine offenses in sections 2 and 3 of the Fair Sentencing Act

retroactive to prisoners who were convicted on or before August 3, 2010. See First

Step Act § 404. Section 404 authorized the court to “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.” Id. § 404(b).

      Here, the district court correctly denied Carter’s motion for a sentence

reduction. As a preliminary matter, we reject Carter’s argument that the First Step

Act grants federal courts the broad authority to resentence a defendant based on

subsequent changes in the law beyond those mandated by sections 2 and 3 of the

Fair Sentencing Act. Specifically, we reject Carter’s claim that, under the First

Step Act, he is effectively entitled to a de novo sentencing proceeding under

current law—and particularly to the retroactive application of Burrage—simply

because he was convicted of an offense covered by the Fair Sentencing Act.

      The First Step Act’s instruction that courts “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” implies that Congress has expressly permitted

courts to retroactively apply only the Fair Sentencing Act to defendants who

qualify, while otherwise considering their sentence against the backdrop of the

legal landscape at the time of their offense. See First Step Act § 404(b); 18 U.S.C.


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§ 3582(c)(1)(B). The language of the statute does not expressly provide for the

retroactive application of other changes in law. See First Step Act § 404; 18

U.S.C. § 3582(c)(1)(B). The statute’s express statement that sections 2 and 3 of

the Fair Sentencing Act are to be applied retroactively indicates that Congress did

not intend that other changes in law should similarly be applied as if they were in

effect at the time of the offense. See United States v. Johnson, 529 U.S. 53, 57-58,

120 S. Ct. 1114, 1118 (2000) (“When Congress provides exceptions in a statute . . .

. [t]he proper inference . . . is that Congress considered the issue of exceptions and,

in the end, limited the statute to the ones set forth.”).

      In addition, even if section 404 could be read to authorize the district court

to consider the entire legal landscape from the time the Fair Sentencing Act was

enacted in 2010, this would not include Burrage, which the Supreme Court

decided in 2014. See Burrage, 571 U.S. 204, 134 S. Ct. 881. Accordingly, Carter

is not entitled to a change in his sentence beyond any change mandated by the Fair

Sentencing Act.

      Applying the Fair Sentencing Act to Carter’s 2006 sentencing, we conclude

that the First Step Act did not authorize the district court to modify Carter’s

sentence. If Carter had been sentenced in 2006 as if sections 2 and 3 of the Fair

Sentencing Act were in effect, then the 50 grams of crack cocaine involved in his

offense would have triggered the statutory sentencing provisions of 21 U.S.C.


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§ 841(b)(1)(B), as opposed to those in § 841(b)(l)(A), which he was sentenced

under on Count 1. 21 U.S.C. § 841(b)(1)(B)(iii) (2012). However, because he had

a previous felony drug conviction and a death resulted from the conspiracy—two

findings we affirmed in Carter’s direct appeal—his statutory minimum sentence

would still have been life imprisonment. Compare 21 U.S.C. § 841(b)(1)(B)

(2012), with 21 U.S.C. § 841(b)(1)(A) (2012).

      Because (1) the Fair Sentencing Act did not modify the predicates necessary

to trigger the mandatory life sentence, regardless of the quantity of drugs involved

in the offense, and (2) we affirmed on direct appeal the existence of both predicates

in Carter’s case, Carter’s mandatory minimum of life imprisonment would have

been the same regardless of whether section 2 of the Fair Sentencing Act had been

in effect in 2006. See 21 U.S.C. § 841(b)(1)(A), (b)(1)(B) (2006); 21 U.S.C. §

841(b)(1)(A), (b)(1)(B) (2012); Westry, 524 F.3d at 1220 n.12, 1220-21; see also

First Step Act § 404(b). Accordingly, Carter remains subject to a mandatory life

sentence even in light of the First Step Act, and the district court therefore

correctly concluded that it did not have the authority to modify Carter’s sentence.

      AFFIRMED.




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