               Case: 19-10926     Date Filed: 06/19/2020    Page: 1 of 4



                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 19-10926
                              Non-Argument Calendar
                            ________________________

                   D.C. Docket No. 4:95-cr-00123-WTM-CLR-2



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

OSCAR LEE BROWN, JR.,

                                                                Defendant-Appellant.

                            ________________________

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

                                   (June 19, 2020)

Before WILLIAM PRYOR, Chief Judge, BRANCH and FAY, Circuit Judges.

PER CURIAM:

      Oscar Brown Jr., a federal prisoner, petitions for rehearing. We grant the

petition, vacate our earlier opinion, and substitute for it the following opinion.
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       Brown appeals pro se the denial of his fourth motion to reduce his sentence.

18 U.S.C. § 3582(c). Brown requested a reduction based on the First Step Act of

2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222. We vacate and remand.

       In 1995, a jury found Brown guilty of conspiring to distribute crack cocaine

and cocaine hydrochloride. 21 U.S.C. § 846. Brown had a base offense level of 38,

United States Sentencing Guidelines Manual § 2D1.1 (1994), based on the

undisputed statement in his presentence investigation report that he was

responsible for at least 1.5 kilograms of cocaine base. See United States v. Wade,

458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to

object to allegations of fact in a PSI admits those facts for sentencing purposes.”).

After Brown received increases for being an organizer or leader of the conspiracy,

U.S.S.G. § 3B1.1(a), for possessing a firearm, id. § 2D1.1(b)(1), and for

obstruction of justice, id. § 3C1.1, he had a total offense level of 46. Brown faced a

statutory sentencing range of 20 years to life imprisonment, 21 U.S.C.

§§ 841(b)(1)(A), 851, and, with a criminal history category of IV, a guideline

range of life imprisonment. The district court sentenced Brown to imprisonment

for life.

       Brown made several attacks on his sentence. He argued on direct appeal that

his sentence violated the Sixth Amendment based on Apprendi v. New Jersey, 530

U.S. 466 (2000), which the Supreme Court decided while his appeal was pending.

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United States v. Brown, No. 95-9422, slip op. at 7–8 (11th Cir. Feb. 5, 2001). We

concluded “that the Apprendi . . . error did not affect any of Brown’s substantial

rights” when he never disputed “the quantity of crack cocaine attributable to him,”

and, even if he had, “the failure to submit that issue to the jury . . . would be

harmless beyond a reasonable doubt” because “[n]o reasonable jury could have

found Brown guilty of the conspiracy offense, as to which the evidence was

overwhelming, without also attributing responsibility to him for conspiring to

distribute more than 50 grams of cocaine base.” Id. at 14–15. Later, Brown moved,

without success, to vacate his conviction, 28 U.S.C. § 2255, and to reduce his

sentence on three occasions, 18 U.S.C. § 3582(c).

      In 2019, Brown filed this fourth motion to reduce his sentence. Id. Brown

argued that his sentence to imprisonment for life was “valid but unfair and

disparate” to the sentences imposed on his coconspirators. He also argued that he

was entitled to a lesser sentence because no “specific drug amount . . . [was]

charged” in his indictment and because of his post-imprisonment rehabilitation.

The district court summarily denied Brown’s motion on the ground he “[did] not

qualify for a reduced sentence under the First Step Act because the Act does not

alter his guideline range.” See 18 U.S.C. § 3582(c)(2).

      We review de novo whether a district court had the authority under the First

Step Act to modify a term of imprisonment. United States v. Jones, No. 19-11505,

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2020 WL 3248113, at *3 (11th Cir. June 16, 2020). We recently held that the First

Step Act grants a district court the authority to modify a term of imprisonment if

the movant was sentenced for a “covered offense,” which is an offense that

“triggered the higher penalties in section 841(b)(1)(A)(iii) or (B)(iii)” of Title 21.

Id. at *7. Because Brown was sentenced for a covered offense, the district court

had the authority to modify his sentence in the exercise of its discretion. By

concluding that Brown was ineligible for relief, the district court erred. See id. at

*11.

       We VACATE the order denying Brown’s motion and REMAND for

reconsideration in the light of our opinion in Jones.




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