              Case: 19-14191    Date Filed: 08/13/2020   Page: 1 of 9



                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-14191
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:03-cr-00343-JSM-AAS-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

GERALD WRIGHT,
a.k.a. Fella

                                                          Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                (August 13, 2020)

Before ROSENBAUM, NEWSOM and BRASHER, Circuit Judges.

PER CURIAM:

      Gerald Wright appeals the district court’s denial of his motion for a sentence

reduction under the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391,
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§ 404, 132 Stat. 5194, 5194. Following our decision in United States v. Jones, 962

F.3d 1290 (11th Cir. 2020), Wright moved for summary reversal, arguing that the

district court erred in finding him ineligible for relief under the First Step Act

because of the drug quantity attributed to him at his sentencing. The government

did not oppose Wright’s motion for summary reversal.

      Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

      We review de novo whether a district court had the authority to modify a

term of imprisonment. Jones, 962 F.3d at 1296. We review the district court’s

denial of an eligible movant’s request for a reduced sentence under the First Step

Act for an abuse of discretion. Id. A district court abuses its discretion when it

“applies an incorrect legal standard.” Diveroli v. United States, 803 F.3d 1258,

1262 (11th Cir. 2015) (quotation marks omitted).

      District courts lack the inherent authority to modify a term of imprisonment

but may do so to the extent that a statute expressly permits. 18 U.S.C.




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§ 3582(c)(1)(B). The First Step Act expressly permits district courts to reduce a

previously imposed term of imprisonment. Jones, 962 F.3d at 1297.

      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. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (“Fair

Sentencing Act”); see Dorsey v. United States, 567 U.S. 260, 268-69 (2012).

Section 2 of the Fair Sentencing Act changed the quantity of crack cocaine

necessary to trigger a 10-year mandatory minimum from 50 grams to 280 grams

and the quantity necessary to trigger a 5-year mandatory minimum from 5 grams to

28 grams. Fair Sentencing Act § 2(a)(1)-(2); see also 21 U.S.C. §

841(b)(1)(A)(iii), (B)(iii). These amendments were not made retroactive to

defendants who were sentenced before the enactment of the Fair Sentencing Act.

United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012).

      In 2018, Congress enacted the First Step Act, which made retroactive the

statutory penalties for covered offenses enacted under the Fair Sentencing Act. See

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

were in effect at the time the covered offense was committed.” Id. § 404(b). The

statute defines “covered offense” as “a violation of a Federal criminal statute, the


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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).

The First Step Act further states that “[n]othing in this section shall be construed to

require a court to reduce any sentence pursuant to this section.” Id. § 404(c).

      In Jones, decided after the district court denied Wright relief, we considered

the appeals of four federal prisoners whose motions for a reduction of sentence

pursuant to § 404(b) were denied in the district courts. See Jones, 962 F.3d at

1293. First, we held that a movant was convicted of a “covered offense” if he was

convicted of a crack-cocaine offense that triggered the penalties in

§ 841(b)(1)(A)(iii) or (B)(iii). Id. at 1301. Interpreting the First Step Act’s

definition of a “covered offense,” we concluded that the phrase “the statutory

penalties for which were modified by section 2 or 3 of the Fair Sentencing Act”

(the “penalties clause”) modifies the term “violation of a Federal criminal statute.”

Id. at 1298; see First Step Act § 404(a). Thus, “a movant’s offense is a covered

offense if section two or three of the Fair Sentencing Act modified its statutory

penalties.” Jones, 962 F.3d at 1298. Because section two of the Fair Sentencing

Act “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),” a movant has a covered offense if he was sentenced for an offense that

triggered one of those statutory penalties. Id.


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      District courts 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) and, therefore, was a covered offense. Id. at

1300-01. We rejected the government’s argument that, when conducting this

inquiry, the district court should consider the actual quantity of crack cocaine

involved in the movant’s violation. Id. at 1301. Rather, the district court should

consider only whether the quantity of crack cocaine satisfied the specific drug

quantity elements in § 841—in other words, whether his offense involved 50 grams

or more of crack cocaine, therefore triggering § 841(b)(1)(A)(iii), or between 5 and

50 grams, therefore triggering § 841(b)(1)(B)(iii). Id.

      Accordingly, any actual amount of drugs involved in the movant’s offense

beyond the amount related to his statutory penalty is not relevant to whether he

was convicted of a covered offense. Id. at 1301-02. However, contrary to the

movants’ arguments, a judge’s actual drug-quantity finding remains relevant to the

extent that the judge’s finding triggered a higher statutory penalty. Id. at 1302.

Thus, a movant sentenced prior to Apprendi v. New Jersey, 530 U.S. 466 (2000), in

which the Supreme Court held that facts, such as a drug quantity, that increase a

defendant’s statutory maximum must be made by a jury, cannot “redefine his

offense” to one triggering a lower statutory penalty simply because the district


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court, not a jury, made the drug-quantity finding relevant to his statutory penalty.

See id.

      Applying this inquiry to the four movants in Jones, we concluded that all

four were sentenced for covered offenses because they were all sentenced for

offenses whose penalties were modified by the Fair Sentencing Act. Id. at

1302-03. Specifically, similar to the situation in the instant case, we determined

that one movant, Thomas Johnson—who was charged in 2008 with five grams or

more of crack cocaine and found by a jury to be responsible for that drug

amount—was convicted of a covered offense. Id. at 1295, 1303. We determined

that, because the Fair Sentence Act modified the statutory penalties for offenses

that involved five grams or more of crack cocaine, his offense qualified as a

covered offense as well. Id. at 1303.

      Next, we explained that a movant’s satisfaction of the “covered offense”

requirement does not necessarily mean that the district court is authorized to

reduce his sentence. Id. Specifically, the “as if” qualifier in Section 404(b) of the

First Step Act, which states that any reduction must be “as if sections 2 and 3 of

the Fair Sentencing Act . . . were in effect at the time the covered offense was

committed,” imposes two limitations on the district court’s authority. Id.

(quotation marks omitted) (alteration in original); see First Step Act § 404(b).

First, the district court cannot reduce a sentence where the movant received the


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lowest statutory penalty that would also be available to him under the Fair

Sentencing Act. Jones, 962 F.3d at 1303. Second, in determining what a movant’s

statutory penalty would have been under the Fair Sentencing Act, the district court

is bound by a previous drug-quantity finding that was used to determine the

movant’s statutory penalty at the time of sentencing. Id. Moreover, the

Constitution does not prohibit district courts from relying on judge-found facts that

triggered statutory penalties prior to Apprendi. See id at 1303-04.

      Applying these limitations, we held that if a movant’s sentence necessarily

would have remained the same had the Fair Sentencing Act been in effect—in

other words, if his sentence was equal to the mandatory minimum imposed by the

Fair Sentencing Act for the quantity of crack cocaine that triggered his statutory

penalty—then the Fair Sentencing Act would not have benefitted him, and the First

Step Act does not authorize the district court to reduce his sentence. Id. at 1303.

      Applying this “as-if” framework, we affirmed the denials of two of the

movants’ motions, but vacated and remanded as to the others because the district

courts had authority to reduce their sentences under the First Step Act, but it was

unclear whether the courts had recognized that authority. Id. at 1304-05.

Specifically, as to movant Johnson, we noted it was unclear whether the district

court recognized that it had the authority to reduce his sentence, which was already

below the reduced guideline range. Id. at 1305. We held that it was error for the


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district courts to conclude that a movant was ineligible based on (1) a higher

drug-quantity finding that was made for sentencing—not statutory—purposes, (2)

a movant’s career-offender status, or (3) a movant’s sentence being at the bottom

of the guideline range. Because it was ambiguous whether the district courts

denied their motions for one of those reasons, we vacated and remanded the

denials for further consideration. Id. at 1305.

      Finally, we noted that, although a district court may have the authority to

reduce a sentence under Section 404 of the First Step Act, it is not required to do

so. Id. at 1304. We held that a district court has wide latitude to determine

whether and how to exercise its discretion, and that it may consider the 18 U.S.C. §

3553(a) factors and a previous drug-quantity finding made for the purposes of

relevant conduct. Id. at 1301, 1304.

      Here, applying the framework in Jones, the district court erred in finding

Wright ineligible for relief under § 404 of the First Step Act. Wright was

sentenced for a “covered offense” under Section 404(b) of the First Step Act. He

was charged in 2003 with conspiracy to possess with intent to distribute “fifty (50)

grams or more” of crack cocaine, and possession with intent to distribute “fifty

(50) grams or more” of crack cocaine. Both the indictment and the jury verdict

made a drug-quantity finding of 50 grams or more of crack cocaine. Based on the

drug amount in his indictment and jury verdict, the statutory penalty for his


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offenses originally was a term of not less than 20 years’ imprisonment to life

imprisonment. However, the same offenses would not lead to the same statutory

range because the Fair Sentencing Act modified the statutory penalties for his

offenses by raising the amount triggering those statutory penalties to 280 grams.

See 21 U.S.C. § 841(b)(1)(A)(iii) (2012). Thus, because that Act modified his

statutory penalties, Wright’s offenses qualified as covered offenses. See Jones,

962 F.3d at 1301.

       Further, the district court had the authority to reduce Wright’s total sentence.

Wright’s mandatory statutory penalty at the time of sentencing would not be the

same under the Fair Sentencing Act. See 21 U.S.C. § 841(b)(1)(A)(iii) (2012).

Thus, Wright’s total sentence of 360 months’ imprisonment was not the lowest

statutory penalty that would be available to him under the Fair Sentencing Act, and

the district court had the authority to reduce his total sentence. See Jones, 962 F.3d

at 1303-04. As such, Wright was eligible for relief under § 404 of the First Step

Act.

       Accordingly, because Wright’s position is clearly correct as a matter of law,

we GRANT his motion for summary reversal and return the case to the district

court for further proceedings.




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