            Case: 19-12007   Date Filed: 08/26/2020   Page: 1 of 7


                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12007
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:01-cr-00022-RAL-TGW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ALBERT STEPHENS, JR.,
a.k.a. Elbert Stephens,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 26, 2020)

Before MARTIN, ROSENBAUM and DUBINA, Circuit Judges.

PER CURIAM:
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      Appellant Albert Stephens, Jr., appeals the district court’s order partially

denying his motion for a sentence reduction, pursuant to the First Step Act of 2018,

Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222, which authorizes a sentence

reduction for defendants who were convicted of offenses whose statutory penalties

were modified by the Fair Sentencing Act of 2010. He argues that the district

court erred in denying him relief because, regardless of whether his guideline range

remained unchanged, he was convicted of an offense whose statutory penalties

were modified by the Fair Sentencing Act. Accordingly, he argues that he was

convicted of a “covered offense” under the First Step Act, and thus, the district

court had the authority to reduce his sentence.

                                          I.

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

term of imprisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir.

2020). District courts lack the inherent authority to modify a term of

imprisonment, but they may do so to the extent that a statute expressly permits. 18

U.S.C. § 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.

                                         II.

      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


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powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.

2372; see Dorsey v. United States, 567 U.S. 260, 268–69, 132 S. Ct. 2321, 2328–

29 (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).

      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

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).

      Recently, in Jones, we considered the appeals of four federal prisoners

whose motions for a reduction of sentence pursuant to § 404(b) were denied in the


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district courts. See 962 F.3d at 1293. First, 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 2 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.at 1298, 1301.

      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, as to one of the defendants, the indictment charged him with 50 grams or

more of crack cocaine, and the district court found a drug quantity of at least 50

grams of crack cocaine. Id. at 1302. Because the Fair Sentencing Act modified

the statutory penalties for offenses that involved 50 grams or more of crack

cocaine, his offense qualified as a covered offense. Id.


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      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. at 1303. 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 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. 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.




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      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 Allen, we noted that the district court denied the motion

because Allen’s guideline range remained the same, based on the drug-quantity

finding made at sentencing, and his sentence was already at the low-end of that

guideline range, such that the court may have incorrectly concluded that he was not

eligible for a further reduction. Id. We held that it was error for the 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. Id. at 1305. 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.

      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 § 3553(a)

factors and a previous drug-quantity finding made for the purposes of relevant


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conduct. Id. at 1301, 1304. Moreover, in a similar case, we held that the First Step

Act does not authorize a district court to conduct a plenary or de novo resentencing

in which it reconsiders sentencing guideline calculations unaffected by sections 2

and 3 of the Fair Sentencing Act. See United States v. Denson, 963 F.3d 1080,

1086–87 (11th Cir. 2020).

                                         III.

      In the instant case, the district court correctly acknowledged that Stephens

was convicted of a “covered offense” and was eligible for relief under the First

Step Act. Based upon our review of the record, however, it is unclear whether the

district court understood that it had the authority to reduce Stephens’s sentence.

The district court may have incorrectly concluded that Stephens was not eligible

for a further reduction because his guideline range remained the same.

Accordingly, for the aforementioned reasons, we vacate the district court’s order

partially denying Stephens’s motion for a sentence reduction and remand to the

district court for further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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