     Case: 19-20647      Document: 00515435416         Page: 1    Date Filed: 06/01/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-20647                             June 1, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellant

v.

JAMES ROY WHITE, also known as Pumpkin, also known as Derrick Gilford,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:99-CR-628-4


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       In 1999, a jury convicted James Roy White of possessing with intent to
distribute 50 grams or more of cocaine base and conspiracy to do the same. At
sentencing, the district court held White responsible for 510.3 grams of cocaine
base and sentenced him under the career offender guideline to concurrent
terms of life imprisonment, to be followed by 10 years of supervised release.
We affirmed that sentence on direct appeal. United States v. White, No. 00-


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-20647    Document: 00515435416     Page: 2   Date Filed: 06/01/2020


                                 No. 19-20647

20783, 2001 WL 1268751, at *1–2 (5th Cir. Oct. 17, 2001). Subsequently, the
district court granted White’s motion to be resentenced under the First Step
Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018), granted him a
downward variance, and sentenced him to concurrent terms of imprisonment
of 300 months, to be followed by eight years of supervised release.
      The Government appeals, arguing that White was ineligible for relief
under the First Step Act. Section 404(b) of the First Step Act provides that the
district court may “impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at
the time the covered offense was committed.” First Step Act, § 404(b). A
“covered offense” is defined 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 of 2010 . . . that was committed before August 3, 2010.” Id. at
§ 404(a). The government argues that the amount of cocaine base attributed to
White by the district court and this court subjected him to the same statutory
penalties prescribed by the Fair Sentencing Act and therefore White’s
convictions do not qualify as covered offenses eligible for a sentence reduction.
      White has moved for summary affirmance, citing this court’s opinion in
United States v. Jackson, 945 F.3d 315 (5th Cir. 2019), cert. denied, 2020 WL
1906710 (U.S. Apr. 20, 2020), which states that whether a defendant has a
covered offense under the First Step Act does not depend on the specific
circumstances of the defendant’s violation but is instead based solely on the
statute of conviction. Id. at 320. The Government admits that its challenge
“may be foreclosed by this Court’s recent ruling in Jackson” but argues that
Jackson does not necessarily foreclose its appeal because the court merely
provided “guidance” on what counts as a covered offense in Jackson, and here,




                                       2
    Case: 19-20647     Document: 00515435416      Page: 3   Date Filed: 06/01/2020


                                  No. 19-20647

unlike in Jackson, this court affirmed the district court’s drug quantity
calculation on direct appeal.
      We review the district court’s interpretation of the Fair Sentencing Act
de novo. Id.at 319. Summary affirmance is proper 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). This court is bound by prior Fifth Circuit decisions until the
decision is explicitly or implicitly overruled by the Supreme Court or this court
sitting en banc. United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014). The
“binding force” of a prior decision encompasses the result and “those portions
of the opinion necessary to the result.” Id. (internal quotation marks and
citation omitted).
      The question presented in Jackson was whether the district court erred
in denying relief under the First Step Act. 945 F.3d at 318. To decide that issue,
the court first had to determine the applicable standard of review and the
analytical framework for evaluating claims for relief under the First Step Act,
both of which were issues of first impression. Id. at 319. The court determined
that “[t]he first inquiry in evaluating a motion under section 404 [of the First
Step Act] is whether the defendant has a ‘covered offense.’” Id. In determining
what qualifies as a covered offense under the First Step Act, the court directly
addressed arguments the Government had made in this and other cases. Id. at
319–20 (citing United States v. White, 2019 WL 3228335, at *2 (S.D. Tex. July
17, 2019)). This analysis could have resolved the appeal if the court had
determined that Jackson’s convictions did not qualify as covered offenses.
Therefore, Jackson’s discussion of what constitutes a covered offense is binding
authority, not “guidance.”



                                        3
    Case: 19-20647     Document: 00515435416      Page: 4   Date Filed: 06/01/2020


                                  No. 19-20647

      The government’s only attempt to distinguish this case from Jackson is
to note that here, unlike in Jackson, this court affirmed the district court’s drug
quantity calculation on direct appeal. But “whether a defendant has a ‘covered
offense’ under section 404(a) depends only on the statute under which he was
convicted.” Id. at 320. Therefore, this court’s direct appeal analysis is not
relevant.
      Accordingly, White’s motion for summary affirmance is GRANTED, and
his motion for an extension of time to file a responsive brief is DENIED as
unnecessary. The judgment of the district court is AFFIRMED.




                                        4
