                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-3595
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  Marcus Johnson

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                             Submitted: June 15, 2020
                               Filed: July 24, 2020
                                  [Unpublished]
                                  ____________

Before KELLY, ERICKSON, and STRAS, Circuit Judges.
                           ____________
PER CURIAM.

       In 2007, Marcus Johnson pled guilty to conspiracy to distribute 500 grams or
more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. The district
court1 sentenced Johnson to a term of 240 months’ imprisonment to be followed by
      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
10 years of supervised release. In May 2019, Johnson moved for a sentence
reduction based on section 404 of the First Step Act. The district court denied
relief, explaining that Johnson was “in exactly the same position after the enactment
of the First Step Act as he was before it” because Johnson had acknowledged
responsibility in his plea agreement for a drug quantity “in excess of 500 grams of
cocaine base.” Johnson appeals.

       The district court analyzed Johnson’s eligibility for relief under the First Step
Act without the benefit of United States v. McDonald, 944 F.3d 769 (8th Cir. 2019)
or United States v. Howard, 962 F.3d 1013 (8th Cir. 2020). Although Johnson
correctly argues the district court’s eligibility determination was in error, the error is
harmless because the court specifically recognized there was a split of authority on
the question of eligibility and declared if the court had discretion to reduce Johnson’s
sentence, it would decline to do so. The court acted within its discretion to deny
relief. Howard, 962 F.3d at 1015.

      The judgment of the district court is affirmed.

KELLY, Circuit Judge, concurring.

       Johnson argues the district court’s alternative holding—that even if he were
eligible for relief under the First Step Act, it would still deny him a sentence
reduction—is insufficient for this court to affirm. But for our recent decision in
Howard, I would remand for a more fulsome analysis from the district court. See
United States v. Howard, 962 F.3d 1013, 1015 (8th Cir. 2020). The Seventh Circuit
recently reversed the denial of First Step Act relief where the district court incorrectly
determined the defendant’s eligibility for relief but alternatively ruled that, “even if
[the defendant] were eligible, it would not reduce his sentence.” United States v.
Shaw, 957 F.3d 734, 740 (7th Cir. 2020). In doing so, the appellate court stated that
it “must be sure that an alternative ruling was not just a conclusory statement tossed

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in for good measure” rather than a “detailed explanation of the basis for the parallel
result.” Id. (cleaned up); see also United States v. Smith, 959 F.3d 701, 704 (6th Cir.
2020) (reversing the denial of First Step Act relief because “the district court failed
to provide a sufficiently compelling justification” for its decision). I agree with this
reasoning and believe it is consistent with our explanation in McDonald that even if
the district court might properly exercise its discretion to deny a sentence reduction,
this “does not remedy any error in determining ineligibility” in the first instance. See
United States v. McDonald, 944 F.3d 769, 772 (8th Cir. 2019).

       However, because Howard involved facts indistinguishable from this case, I
agree that we are bound to affirm the district court’s judgment. See United States v.
Howard, 962 F.3d at 1015 (affirming where the district court incorrectly found the
defendant ineligible for First Step Act relief but “additionally stated that even if
Howard had been eligible for relief . . . , ‘this is not a case in which the Court would
exercise its discretion to grant such relief’”).
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