                               RECOMMENDED FOR PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 20a0187p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                  ┐
                                   Plaintiff-Appellee,      │
                                                            │
                                                             >        No. 19-3742
        v.                                                  │
                                                            │
                                                            │
 STEVEN D. FLOWERS,                                         │
                                Defendant-Appellant.        │
                                                            ┘

                         Appeal from the United States District Court
                        for the Northern District of Ohio at Cleveland.
                   No. 1:04-cr-00223-1—Donald C. Nugent, District Judge.

                               Decided and Filed: June 23, 2020

                      Before: CLAY, COOK, and WHITE, Circuit Judges.
                                   _________________

                                           COUNSEL

ON BRIEF: Catherine Adinaro Shusky, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio,
for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,
for Appellee.

                                     _________________

                                            OPINION
                                     _________________

       CLAY, Circuit Judge. Defendant Steven Flowers appeals from the district court’s denial
of a motion to reduce his sentence under the First Step Act of 2018, Pub. L. No. 115-391, § 404,
132 Stat. 5194, 5222. Flowers argues that the district court erred by suggesting that he was
ineligible for a reduction because his guidelines range did not change since his original
sentencing, even though the First Step Act only concerns statutory sentencing ranges. The
district court’s opinion is somewhat unclear on this point, but even if it did consider Flowers
 No. 19-3742                          United States v. Flowers                            Page 2


ineligible, that error was harmless because the court went on to deny his motion on the merits.
On that point, Flowers says the court abused its discretion by failing to consider or give
appropriate weight to a variety of factors when it declined to reduce his sentence. But the record
reflects that the district court did consider Flowers’ arguments and did not abuse its broad
discretion in rejecting them. We therefore affirm the denial of Flowers’ motion.

                                         BACKGROUND

       In 2004, Steven Flowers was charged with possessing with intent to distribute over fifty
grams of crack cocaine. Under then-governing law, that crime carried a mandatory minimum
prison sentence of ten years. 21 U.S.C. § 841(b)(1)(A) (2004) (amended 2010). But if a person
committed that crime after “a prior conviction for a felony drug offense,” the mandatory
minimum became twenty years, and for two prior drug felonies, the minimum sentence was life
in prison. Id. Flowers fell into the last of these categories.

       Rather than face trial and a mandatory life sentence upon conviction, Flowers entered
into a plea agreement with the government. Under that agreement, Flowers pleaded guilty to the
possession charge, but the government agreed to allege only one of his prior drug offenses,
meaning his mandatory minimum would be twenty years rather than life. But regardless of the
mandatory minimum, Flowers was also classified as a career offender under the sentencing
guidelines, and so his guidelines sentencing range was 262 to 327 months—the low end being
just shy of two years more than the statutory minimum. While Flowers moved for a downward
departure, at the time of his sentencing, the guidelines were mandatory because United States v.
Booker, 543 U.S. 220 (2005), had not yet been decided. Thus, because the district court found
that there was no legal basis supporting a downward departure, it sentenced Flowers to the
lowest level in the guidelines range: 262 months.

       After Flowers’ sentencing, several things happened. First, just over three months later,
the Supreme Court decided Booker, which rendered the guidelines advisory, 543 U.S. at 259–60,
264–65.    Second, Congress passed the Fair Sentencing Act of 2010, which reduced the
mandatory minimum for Flowers’ conviction from twenty years to ten. Pub. L. No. 111-220, § 2,
124 Stat. 2372, 2372; 21 U.S.C. § 841(b)(1)(B) (2020). Third, and perhaps most importantly,
 No. 19-3742                                United States v. Flowers                                         Page 3


Congress passed the First Step Act of 2018. Prior to the First Step Act, the reductions under the
Fair Sentencing Act were not retroactive. United States v. Blewett, 746 F.3d 647, 650 (6th Cir.
2013) (en banc). But under the First Step Act, a criminal defendant sentenced before the Fair
Sentencing Act was passed can now move for a sentence reduction if the 2010 law modified the
statutory penalties for that crime. First Step Act § 404. In effect, this made the Fair Sentencing
Act retroactive. United States v. Alexander, 951 F.3d 706, 707 (6th Cir. 2019) (order).

         In 2019, Flowers moved for such a reduction under the First Step Act. In his motion,
Flowers argued that he was eligible for relief because the Fair Sentencing Act had modified the
statutory minimum for his conviction, which is all that is required under the First Step Act. He
then went on to argue that the district court should exercise this discretion and reduce his
sentence because, were Flowers sentenced today, he would not qualify as a career offender under
the guidelines. This is because Ohio amended the state statute under which he was previously
convicted such that it would no longer qualify as a felony drug offense, which in turn could have
substantially lowered his guidelines range.1 Finally, Flowers also argued that his educational
accomplishments and limited disciplinary record in prison meant that the court should grant a
reduction in his sentence.

         Although the government agreed that Flowers was “technically eligible for a sentence
reduction,” it argued that the court should not grant such a discretionary reduction. (Opp’n,
R. 40 at PageID #162.) This is because Flowers’ guidelines range was unchanged from the time
of his original sentencing, and the court should not revisit the original guidelines determination
or consider a variance from those guidelines (as now authorized under Booker). But, if the court
did consider such a request for a variance, the government argued that Flowers’ original sentence
was still reasonable, and so his motion should nevertheless be denied.

         The district court (and the same judge who imposed the original sentence) largely denied
Flowers’ motion. United States v. Flowers, No. 1:04-CR-223, 2019 WL 3068204 (N.D. Ohio



         1Flowers   also tried to preempt a possible argument from the government that he “is precluded from
obtaining relief under the First Step Act due to his being classified as a career offender at the time of his sentence”
(Mot. to Reduce Sentence, R. 39 at PageID #118), but the government never made such an argument.
 No. 19-3742                            United States v. Flowers                                   Page 4


July 12, 2019).2 The court noted that “[b]oth parties agree that if the Fair Sentencing Act had
been in place at the time of Mr. Flowers’ original sentencing, his mandatory minimum sentence
would have been reduced from twenty years to ten years.” Id. at *1. But the court agreed with
the government’s argument that Flowers’ sentence should not be reduced “because his sentence
was based on the guideline range that corresponded to his total offense level and criminal history
category, which have not changed, and was not affected by the mandatory minimum in place at
the time.” Id.

        The court elaborated as follows:

        Even if the Court accepts Mr. Flowers’ position that a defendant may receive a
        reduced sentence under the First Step Act, whether or not his guideline range
        changed, Mr. Flowers’ sentence is the same sentence that this Court would have
        imposed if the Fair Sentencing Act of 2010 were in effect at the time the covered
        offense was committed. Under the terms of the Act, this is the standard the Court
        is required to consider. Even though his mandatory minimum sentence was
        reduced by the Act, the guideline range applicable to his case has not changed.
        Taking into account the new statutory range, the guideline range, the factors in
        18 U.S.C. § 3553(a), and Mr. Flowers’ evidence of post-sentencing mitigation,
        the Court finds that a sentence within the guideline range was and remains
        justified by a variety of considerations previously set forth in the plea agreement
        and discussed at his original sentencing. The Court did not consider the
        mandatory minimum statutory sentence in effect at the time of his original
        sentencing as a substantial factor in determining his sentence. Further, the upper
        end of the statutory maximum applicable to Mr. Flowers’ case has not changed.
        Finally, there is no evidence of anything significant in his post-conviction
        behavior that would warrant a change in his original sentence. Mr. Flowers has
        apparently taken advantage of some education courses, but has also been the
        subject of minor disciplinary infractions. Therefore, no reduction in his term of
        incarceration is warranted.

Id.

        The court also rejected Flowers’s argument regarding his career offender status because
the state statute of which he was convicted was a felony at the time of his conviction, and the
state legislature had not made its amendment retroactive. Id. at *2. Thus, in the district court’s
view, Flowers remains a career offender today, and so his guidelines range was unchanged. Id.

        2The court lowered Flowers’ mandatory term of supervised release, which was also reduced by the Fair
Sentencing Act. Flowers, 2019 WL 3068204, at *1–2.
 No. 19-3742                          United States v. Flowers                             Page 5


The court noted that this would be a different question if, say, a statute had been declared
unconstitutional, because “it should not perpetuate the application of an unconstitutional practice
when determining a new sentence that complies with the First Step Act’s directives.” Id. But
since the state statutory amendment did not implicate any constitutional right, it could not
retroactively be applied in the context of Flowers’ motion. Id.

       On appeal, Flowers first keys in on the district court’s statement that “[e]ven if the Court
accepts Mr. Flowers’ position that a defendant may receive a reduced sentence under the First
Step Act, whether or not his guideline range changed,” it would still deny relief. Id. at *1.
According to Flowers, this shows that the district court actually considered him to be ineligible
under the First Step Act, and so this error alone requires reversal.

       Moving beyond this statement, Flowers argues that the court erred in its discussion of his
career offender status because it suggested the court could not consider the current state of the
law in assessing whether to grant a reduction. In this, Flowers said that his argument about
career offender status may have been misconstrued below, and that “[t]he point was not to re-
litigate [Flowers’ career offender] classification but to have the court consider the change in the
law as a reflection of the change in the community’s position as to the severity of the offense and
the need for the sentence imposed.” (Appellant Br. at 18.) Flowers also argued that the district
court should not have relied on the fact that it “did not consider the mandatory minimum
statutory sentence in effect at the time of his original sentencing as a substantial factor in
determining his sentence,” Flowers, 2019 WL 3068204, at *1, because at the time of his
sentencing, the guidelines were mandatory and thus prevented any consideration of the lower
mandatory minimum. Finally, Flowers says that the district court clearly erred in saying there
was “no evidence of anything significant in his post-conviction behavior that would warrant a
change in his original sentence,” Flowers, 2019 WL 3068204, at *1, given the extent of his
prison education. We address each of these arguments below.
 No. 19-3742                         United States v. Flowers                             Page 6


                                           DISCUSSION

       A. Standard of Review

       The district court’s denial of a motion for sentence reduction under the First Step Act is
reviewed for an abuse of discretion. United States v. Woods, 949 F.3d 934, 938 (6th Cir. 2020).
“Abuse of discretion is defined as a definite and firm conviction that the trial court committed a
clear error of judgment.” Landrum v. Anderson, 813 F.3d 330, 334 (6th Cir. 2016) (quoting
Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir. 2006)). Similarly, a “district court abuses its
discretion when it relies on clearly erroneous findings of fact, uses an erroneous legal standard,
or improperly applies the law.” United States v. White, 492 F.3d 380, 408 (6th Cir. 2007).
“[Q]uestions of statutory interpretation are reviewed de novo.” United States v. Lawrence,
735 F.3d 385, 405 (6th Cir. 2013).

       B. Eligibility for Resentencing

       Flowers’ first argument on appeal is that the district court erred by implicitly deeming
him ineligible for relief under the First Step Act because Flowers’ guidelines range did not
change. Flowers believes the district court made such an error because it addressed the merits of
his motion after saying, “[e]ven if the Court accepts Mr. Flowers’ position that a defendant may
receive a reduced sentence under the First Step Act, whether or not his guideline range changed,”
Flowers, 2019 WL 3068204, at *1, with the “[e]ven if” language suggesting that the court did
not actually think Flowers was eligible.

       Under the First Step Act, “[a] court that imposed a sentence for a covered offense
may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010
were in effect at the time the covered offense was committed.” § 404(b) (citation omitted).
Within that provision, “‘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,
that was committed before August 3, 2010.” § 404(a) (citation omitted). The only limitations on
eligibility for relief under the act are for sentences already imposed or reduced in accordance
with those sections of the Fair Sentencing Act, or if an earlier motion for a sentence reduction
under the First Step Act was denied on the merits. § 404(c).
 No. 19-3742                           United States v. Flowers                                  Page 7


        To the extent that the district court considered Flowers ineligible for relief, that
determination was in error. The statutory penalties for his crime of conviction were modified by
the Fair Sentencing Act, and none of the First Step Act’s other limitations apply to him. Under
the plain language of this statute, Flowers is eligible for relief, and the sentencing guidelines are
irrelevant to that threshold determination. See United States v. Beamus, 943 F.3d 789, 791–92
(6th Cir. 2019) (per curiam) (“Beamus is eligible for resentencing because, and only because, the
Fair Sentencing Act modified the statutory range for his offense. That the Sentencing Guidelines
also would have applied differently does not affect his eligibility for resentencing.”); see also
United States v. Maxwell, 800 F. App’x 373, 377 (6th Cir. 2020) (discussing First Step Act
eligibility).

        That said, any possible error on this point was harmless. This is because the district court
went on to address the merits of Flowers’ motion and found that his “sentence is the same
sentence that [it] would have imposed if the Fair Sentencing Act of 2010 were in effect at the
time the covered offense was committed.” Flowers, 2019 WL 3068204, at *1. Because we can
be certain that any potential error with respect to eligibility did not affect the outcome of
Flowers’ motion, that error was harmless and cannot support reversal. See, e.g., Williams v.
United States, 503 U.S. 193, 203 (1992) (discussing harmless error in sentencing cases); United
States v. Johnson, 467 F.3d 559, 564–65 (6th Cir. 2006) (same); United States v. Brown,
444 F.3d 519, 522 (6th Cir. 2006) (finding a sentencing error harmless when the reviewing court
can be sure that the district court would have imposed the same sentence even without the error);
see also Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”); cf. Molina-Martinez v. United States, 136 S. Ct. 1338,
1348 (2016) (finding that a sentencing error prejudiced the defendant because “[t]he District
Court said nothing to suggest that it would have imposed [the same] sentence” absent the error).
Thus, we proceed to address the district court’s denial of Flowers’ motion on the merits.

        C. Merits of Flowers’ First Step Act Motion

        While a defendant may be eligible for relief under the First Step Act, this does not mean
that he is entitled to it. In fact, the act specifically says that “[n]othing in [section 404 of the First
Step Act] shall be construed to require a court to reduce any sentence pursuant to this section.”
 No. 19-3742                                United States v. Flowers                                        Page 8


§ 404(c). Thus, “[t]he First Step Act ultimately leaves the choice whether to resentence to the
district court’s sound discretion.” Beamus, 943 F.3d at 792; see also Maxwell, 800 F. App’x at
378 (“The First Step Act merely unlocks the door to resentencing . . . . But it is still up to the
district court to open that door.”). In exercising this discretion, the district court must consider
the factors outlined in 18 U.S.C. § 3553(a), including the defendant’s amended guidelines range,
and then ensure that the sentence is sufficient but not greater than necessary to achieve the
purposes of sentencing. United States v. Boulding, No. 19-1590, --- F.3d ---, 2020 WL 2832110,
at *7–8 (6th Cir. June 1, 2020);3 United States v. Foreman, 958 F.3d 506, 513–14 (6th Cir.
2020); see also United States v. Allen, 956 F.3d 355, 357–58 (6th Cir. 2020) (explaining that the
First Step Act contemplates a review of the defendant’s sentence under the § 3553(a) factors).

         Flowers points to three things that—according to him—demonstrate the district court
abused this discretion in denying his First Step Act motion. Specifically, Flowers says the
district court erred (1) in its treatment of the change in Ohio law with respect to his career
offender status, (2) by noting that it had not relied on the mandatory minimum when imposing
the original sentence, because his then-mandatory guidelines range was higher than that
mandatory minimum, and (3) by discounting his in-prison education. None of these amounts to
an abuse of discretion.

         First, Flowers claims that the district court “concluded it could not consider the current
state of the law as a factor in deciding whether to exercise its discretion and grant a sentence
reduction.” (Appellant Br. at 18–19.) But this is not what the district court said. In his motion
below, Flowers said because of the change in Ohio law, he “is not a career offender” and so
should be sentenced in line with a significantly reduced guidelines range. (Mot. to Reduce
Sentence, R. 39, at PageID #117–18.) The court addressed this argument by noting that Ohio’s
change in law was not retroactive and thus did not impact Flowers’ sentencing range under the
guidelines. Flowers, 2019 WL 3068204, at *2. Nowhere did the court say it lacked the authority
to consider whether Ohio’s change in law reflected a change in community beliefs as to the


         3In Boulding, we held that the defendant must have “an opportunity to present his objections to [the district
court’s] calculation of his amended guideline range,” 2020 WL 2832110, at *9, but Flowers makes no such
procedural argument. Nor does he argue that his guideline range has changed from his original sentencing.
 No. 19-3742                               United States v. Flowers                                      Page 9


seriousness of Flowers’ crimes. Indeed, the court expressly noted that it considered the factors
under 18 U.S.C. § 3553(a) in deciding to maintain Flowers’ existing sentence. Id. at *1–2.4

        Second, the district court, in the course of explaining why it denied Flowers’ motion,
noted that it “did not consider the mandatory minimum statutory sentence in effect at the time of
his original sentencing as a substantial factor in determining his [original] sentence.” Id. at *1.
According to Flowers, because the guidelines were mandatory at the time of his original
sentencing, the court had no authority to consider this lower statutory minimum, and so it should
not have noted that as a reason for denying his First Step Act motion.

        This argument again misconstrues the import of the district court’s comment and the
scope of relief afforded by the First Step Act. As noted above, the purpose of the act is to
retroactively apply the Fair Sentencing Act, and so courts are discretionarily permitted to
“impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in
effect at the time the covered offense was committed.”                   First Step Act § 404(b) (citation
omitted); accord Alexander, 951 F.3d at 707–08. If, when a court originally imposed a sentence,
it specifically relied on a mandatory minimum that was later amended by the Fair Sentencing
Act, that fact would be a strong reason to grant resentencing under the First Step Act, since it in
turn suggests that the sentencing court might have imposed a lower sentence were it not for that
mandatory minimum. So, by noting that this was not the case, the district court was simply
ruling out one reason why it might have granted the motion, rather than relying on this as an
independently adequate reason to deny it.5 See Flowers, 2019 WL 3068204, *1 (noting several
factors the court considered, including the § 3553(a) factors, in deciding that Flowers’ existing
sentence “is the same sentence that [the court] would have imposed if the Fair Sentencing Act of
2010 were in effect at the time the covered offense was committed”); cf. Chavez-Meza v. United




        4Flowers     also notes that the court should have considered amendments to the non-career-offender
sentencing guidelines for crack cocaine as further evidence of a change in community opinions about the seriousness
of his offense, but this fails for the same reason as his argument about Ohio law.
       5Flowers’ argument that the district court was wrong to point out that his statutory maximum sentence was
unchanged fails for the same reason.
 No. 19-3742                                  United States v. Flowers                                         Page 10


States, 138 S. Ct. 1959, 1965–67 (2018) (discussing the extent to which the district court must
explain its reasoning in a sentence-reduction case).6

         Finally, Flowers says the district court’s statement that “there is no evidence of anything
significant in [Flowers’] post-conviction behavior that would warrant a change in his original
sentence,” Flowers, 2019 WL 3068204, at *1, was factually erroneous because of his significant
prison educational accomplishments and minimal disciplinary record. This argument confuses
factual findings—which are reviewed for clear error—and the importance the district court
places on those findings—which here is reviewed for an abuse of discretion. Cf., e.g., Holt v.
City of Battle Creek, 925 F.3d 905, 910–11 (6th Cir. 2019) (discussing the clear error standard
for review of factual findings). In this case, the district court found that Flowers “has apparently
taken advantage of some education courses, but has also been the subject of minor disciplinary
infractions,” finding in sum that this post-conviction record was not significant enough to
warrant a lower sentence. Flowers, 2019 WL 3068204, at *1. The First Step Act gives the
district court broad discretion in deciding whether a given fact is significant enough to merit a
reduction in sentence, and it did not abuse this discretion by deciding that Flowers’ record failed
to fit this bill. See, e.g., Landrum, 813 F.3d at 334 (requiring “a definite and firm conviction that
the trial court committed a clear error of judgment” before reversing for an abuse of discretion
(quoting Burrell, 434 F.3d at 831)).

                                                  CONCLUSION

         For the reasons stated above, we affirm the denial of Flowers’ First Step Act motion.


         6To   be sure, a district court cannot deny a First Step Act motion by treating the sentencing guidelines as
mandatory because the defendant was originally sentenced prior to Booker. Even if a court should decide a First
Step Act motion “by placing itself in the time frame of the original sentencing, altering the relevant legal landscape
only by the changes mandated by the 2010 Fair Sentencing Act,” United States v. Hegwood, 934 F.3d 414, 418 (5th
Cir.), cert. denied, 140 S. Ct. 285 (2019)—a question this Court has not squarely addressed—this legal retrospective
cannot include the application of an unconstitutional statute. Though only later declared unconstitutional, the
mandatory-guidelines provision always was unconstitutional, and so cannot be relied on by a court when
considering a First Step Act motion. See, e.g., Norton v. Shelby County, 118 U.S. 425, 442 (1886)
(“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no
office; it is, in legal contemplation, as inoperative as though it had never been passed.”); cf. United States v.
Magouirk, 468 F.3d 943, 947 (6th Cir. 2006) (“[A] district court judge who treats the Guidelines as mandatory in
imposing a sentence in this post-Booker world necessarily commits plain error.”). But there is no evidence that the
district court committed such an error here, and Flowers has not argued this in his brief on appeal.
