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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-13216
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:97-cr-00025-DHB-BKE-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

RICKY MARCUS CURRY,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 12, 2020)

Before GRANT, LUCK, and FAY, Circuit Judges.

PER CURIAM:
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       Ricky Curry appeals the district court’s order denying his request for a

sentence reduction under the First Step Act of 2018, Pub. L. No. 115-391, § 404,

132 Stat. 5194, 5222. He argues that the district court erred in determining that he

is ineligible for a sentence reduction because the First Step Act did not change the

applicable Sentencing Guidelines range. For the reasons outlined below, we vacate

and remand for further proceedings in the district court.

                                               I.

       In 1998, a jury found Curry guilty of conspiracy to possess with intent to

distribute and to distribute crack cocaine and cocaine hydrochloride, in violation of

21 U.S.C. § 846 and 18 U.S.C. § 2 (Count 1); and possession with intent to

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

U.S.C. § 2 (Count 2). At sentencing, the district court found by a preponderance of

the evidence that Curry’s conspiracy offense involved 21.5 kilograms of crack

cocaine and beyond a reasonable doubt that his conduct involved 3 or 4 kilograms

of crack cocaine. Because Curry had a prior conviction for a felony drug offense,

his statutory sentencing range was 20 years to life for Count 1 and 10 years to life

for Count 2.1 See 21 U.S.C. §§ 841(b)(1)(A) & (b)(1)(B) (1994). Curry’s




1
 Curry’s statutory penalties were based on the district court’s drug-quantity findings because
Curry was convicted and sentenced before the Supreme Court decided Apprendi v. New Jersey,
which made clear that a drug quantity that increases a defendant’s statutory penalty range must
be found by a jury beyond a reasonable doubt. 530 U.S. 466, 490 (2000).
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Sentencing Guidelines range, based on a total offense level of 44 and a criminal

history category of VI, was life in prison. The district court imposed a life

sentence, to be followed by ten years of supervised release. We affirmed his

convictions and sentence on appeal. United States v. Curry, 31 Fed. Appx. 928

(11th Cir. 2002) (Table).

      After pursuing other post-conviction relief, Curry filed a motion in 2014 for

a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 782 of the

Sentencing Guidelines. The district court granted the motion, concluding that

Amendment 782 effectively lowered Curry’s Guidelines range to 360 months to

life in prison, and reduced Curry’s sentence of imprisonment to 360 months.

      In 2019, Curry filed a motion requesting a sentence reduction under § 404 of

the First Step Act. He argued that he was eligible for First Step Act relief and that

under Apprendi v. New Jersey, 530 U.S. 466 (2000), his new statutory sentencing

range should not be subject to enhancement based on the quantity of crack cocaine

calculated at his initial sentencing because no specific drug quantity was charged

in his indictment or found by the jury. He further argued that the district court

could exercise its discretion to reduce his sentence below his Guidelines range, and

that a substantial sentence reduction was warranted in light of his post-sentencing

rehabilitation and other factors. In subsequent filings, Curry argued that the statute

of conviction, rather than his offense conduct, should determine his eligibility for


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relief. The government responded that Curry was not eligible for a sentence

reduction because of the quantity of crack cocaine involved in his offense, which

was not subject to relitigation in the context of a First Step Act motion. The

government also pointed out that Curry’s 360-month sentence was within his

current Guidelines range and within the revised statutory range that Curry

advocated.

      Characterizing Curry’s motion as a request “for a reduction in the term of

imprisonment imposed based on a guideline sentencing range that has

subsequently been lowered and made retroactive by the First Step Act of 2018,”

the district court denied Curry’s motion and related submissions. Under the

heading “Factors Considered Under USSG § 1B1.10 and 18 U.S.C. § 3533(a),” the

court stated that “[u]pon consideration of the facts and circumstances of the

Defendant’s case, as well as all relevant sentencing factors of 18 U.S.C. § 3553(a),

the Court has determined that a reduction of the Defendant’s current term of

imprisonment pursuant to the First Step Act of 2018 is not appropriate.” The court

explained that it had considered the quantity of drugs for which Curry was held

accountable at sentencing and his previous sentence reduction to 360 months’

imprisonment. The court stated that the First Step Act did not reduce Curry’s total

offense level under the Sentencing Guidelines, and that Curry’s statutory penalties

were unchanged because he distributed more than 21 kilograms of crack cocaine


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and had a prior conviction for a felony drug offense. The court also explained that

it had taken “into account the policy statement set forth at USSG § 1B1.10 and the

sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are

applicable.” Curry now appeals.

                                           II.

      We review a district court’s determination regarding a prisoner’s eligibility

for a sentence reduction under the First Step Act de novo. United States v. Jones,

962 F.3d 1290, 1296 (11th Cir. 2020). We review the district court’s denial of an

eligible movant’s request for First Step Act relief for an abuse of discretion. Id.

“A district court abuses its discretion ‘when it applies an incorrect legal standard.’”

Id. at 1304 (citation omitted).

                                          III.

      Section 404(b) of the First Step Act permits district courts to apply certain

provisions of the Fair Sentencing Act of 2010 retroactively to prisoners who were

sentenced before the Fair Sentencing Act became effective. First Step Act

§ 404(b); see Jones, 962 F.3d at 1297. To be eligible for a reduction under

§ 404(b), the defendant must have been sentenced for a “covered offense,” which

is defined 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. § 404(a). Section 2 of the Fair Sentencing


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Act, the section applicable here, “modified the statutory penalties for crack-cocaine

offenses that have as an element the quantity of crack cocaine provided in

subsections 841(b)(1)(A)(iii) and (B)(iii).” Jones, 962 F.3d at 1298.

      In determining whether a movant is eligible for a sentence reduction under

the First Step Act, therefore, the district court must consult the record, including

the movant’s charging document, the jury verdict or guilty plea, the sentencing

record, and the final judgment, to determine whether the movant’s offense

triggered the penalties in § 841(b)(1)(A)(iii) or (B)(iii). Id. at 1300–01. The

relevant question is whether the movant’s conduct satisfied the drug-quantity

element in §§ 841(b)(1)(A)(iii) (50 grams or more of crack cocaine) or

841(b)(1)(B)(iii) (5 grams or more of crack cocaine) and subjected the movant to

the penalties in those subsections. Id. at 1301–02. If so, and if the offense was

committed before August 3, 2010 (the effective date of the Fair Sentencing Act)

then the movant’s offense is a “covered offense,” and the district court may reduce

the movant’s sentence “as if” the applicable provisions of the Fair Sentencing Act

“were in effect at the time the covered offense was committed.” First Step Act

§ 404(b); Jones, 962 F.3d at 1301, 1303.

      But just because a district court is authorized to reduce a movant’s sentence

does not mean that it is required to do so. The First Step Act states that “[n]othing

in this section shall be construed to require a court to reduce any sentence pursuant


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to this section.” First Step Act § 404(c). District courts retain “wide latitude” to

determine whether and to what extent to grant a sentence reduction. Jones, 962

F.3d at 1304. In exercising their discretion in this regard, district courts may

consider “all the relevant factors,” including the § 3553(a) sentencing factors. Id.

      Where the record is ambiguous as to whether the district court understood its

authority to reduce a sentence under the First Step Act, we will vacate the order

and remand for further proceedings. See id. at 1305. Here, the district court’s

order is ambiguous as to whether it understood the scope of its authority under the

First Step Act. The court’s references to § 1B1.10 of the Sentencing Guidelines—

which limits a court’s authority to reduce a defendant’s sentence based on an

amendment to the Guidelines—indicate that the court may have believed that it

lacked the authority to reduce Curry’s sentence below his Guidelines range. See

U.S.S.G. § 1B1.10(b)(2)(A). But the limitation in § 1B1.10(b) does not apply to

motions under the First Step Act; district courts have the authority under § 404(b)

to reduce an eligible movant’s sentence below his revised Guidelines range. See

Jones, 962 F.3d at 1305.

      Because we cannot tell whether the district court correctly understood the

scope of its power under § 404(b), we vacate the order denying Curry’s First Step

Act motion and remand for further proceedings consistent with this opinion and

with our opinion in Jones.


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VACATED and REMANDED.




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