                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-2498
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                 James A. Howard

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                  ____________

                             Submitted: May 11, 2020
                               Filed: June 16, 2020
                                  ____________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

       In 2007 James Howard entered a plea of guilty to, among other charges,
conspiracy to possess with intent to distribute fifty grams or more of a mixture or
substance containing cocaine base (crack cocaine). For sentencing purposes, the
parties agreed that Howard would be responsible on that charge for at least 1.5
kilograms of a mixture of substance containing a detectable amount of crack cocaine.
Howard’s calculated Guidelines range was 135 to 168 months in prison. The district
court1 sentenced Howard to 135 months’ imprisonment on the drug count relevant
here.

       In June 2019, Howard filed a motion for a sentence reduction under section 404
of the First Step Act, contending that he should be held responsible only for the
quantity of drug alleged in Count I of the indictment–fifty grams of cocaine base–and
that he was thus eligible for a sentence reduction. The district court denied the
motion. “We review for an abuse of discretion the district court’s decision to grant
or deny an authorized sentence reduction.” United States v. McDonald, 944 F.3d
769, 771 (8th Cir. 2019); see First Step Act of 2018, Pub. L. No. 115-391, § 404(c),
132 Stat. 5194, 5222 (“Nothing in this section shall be construed to require a court
to reduce any sentence pursuant to this section.”). Under the First Step Act, a court
that imposed a sentence for an offense whose penalties were modified by the Fair
Sentencing Act of 2010 may, in its discretion, impose a reduced sentence. Pub. L.
No. 115-391, § 404(b), 132 Stat. 5194, 5222.

       Analyzing the issue without the benefit of this circuit’s discussion in
McDonald, 944 F.3d at 771-72, the district court concluded that the drug quantity
accepted by the plea agreement and as set forth in the presentence investigation report
applied, holding Howard responsible for at least 1.5 kilograms of crack cocaine.
Using this amount, the court surmised that the government would have charged him
in accordance with the new statutory language setting the ten-year mandatory
minimum threshold at 280 grams (increased from fifty grams) and thus his offense
penalties remained unchanged. See 21 U.S.C. § 841(b)(1)(A)(iii). Accordingly, the
district court found Howard precluded from receiving First Step Act relief.



      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

                                         -2-
        After McDonald, we now know that the court erred in finding Howard
ineligible for relief. McDonald held that the First Step Act “applies to offenses, not
conduct,” so it is the defendant’s statute of conviction that determines his eligibility
for relief. 944 F.3d at 772. The statute of conviction in Howard’s case required proof
that he distributed or conspired to distribute fifty grams or more of cocaine base. The
Fair Sentencing Act of 2010 increased the amount of cocaine base required to trigger
the mandatory minimum of ten years from fifty grams to 280 grams. See Pub. L. No.
111-220, § 2(a), 124 Stat. 2372, 2372. Howard’s offense of conviction falls under 21
U.S.C. § 841(b)(1)(B)(iii), which establishes a statutory penalty range of five to forty
years for twenty-eight grams or more of cocaine base. Based on his offense of
conviction, Howard was thus eligible for First Step Act relief–indeed, a new
mandatory minimum applied–because his was a “covered offense” under section
404(a).

       Our inquiry does not end with the acknowledgment of the court’s error,
however, because in this case, the district court additionally stated that even if
Howard had been eligible for relief under the First Step Act, “this is not a case in
which the Court would exercise its discretion to grant such relief.” This statement by
the district court distinguishes this case from McDonald where this circuit rejected
a posited abuse-of-discretion argument. 944 F.3d at 772. In McDonald the
government argued there was no abuse of discretion because the district court had
already granted a reduction years earlier pursuant to retroactive amendments to the
United States Sentencing Guidelines. The government claimed that in previously
doing so the court analyzed the same factors as it would in accordance with the Fair
Sentencing Act, and thus had effectively already reduced McDonald’s sentence, and
any further reduction under the First Step Act was foreclosed–an argument this court
rejected. Id. (“That the court might properly deny relief at the discretionary second
step does not remedy any error in determining ineligibility at the first step.”).




                                          -3-
       Unlike the factual scenario in McDonald, the district court in this particular
matter addressed its discretion under the First Step Act particularly, conducting the
appropriate second step contemplated by the Act. Id. (clarifying the necessary two-
step analysis under the First Step Act). As a result, we find that although the court
erred regarding Howard’s eligibility under step one, remanding on the basis of that
error would be an exercise in futility. The district court was the original sentencing
court and thus was uniquely positioned to consider the many factors necessary in
exercising its ultimate discretion. The court’s plain statement regarding its decision
not to exercise its discretion under the First Step Act in this case closes the matter.
Accordingly, there was no reversible error and we affirm the judgment.
                        ______________________________




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