            Case: 19-12707   Date Filed: 08/14/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12707
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:07-cr-80041-KAM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


DWYNE BYRON DERUISE,
a.k.a. Duke,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 14, 2020)

Before JILL PRYOR, GRANT and LUCK, Circuit Judges.

PER CURIAM:
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      Dwyne Deruise appeals the district court’s determination that it had no

authority under § 404 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat.

5194 (the “First Step Act”) to conduct a plenary sentencing hearing to consider

whether Deruise still qualified as a career offender when granting him a reduction

in his sentence under the First Step Act. Deruise argues that the First Step Act

authorized district courts to conduct a full resentencing because nothing in the act

limits what the court may consider in imposing a reduced sentence. After careful

consideration, we affirm the district court’s determination.

      In 2007, a grand jury indicted Deruise on three counts of distributing cocaine

and crack cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), (B), (C)

(Counts 1-3); two counts of manufacturing and possessing with intent to distribute

at least 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A),

and 18 U.S.C. § 2 (Counts 4-5); and one count of carrying a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)

(Count 6). Deruise pled guilty to Counts 5 and 6.

      In calculating Deruise’s guideline range using the 2006 Sentencing

Guidelines, the Presentence Investigation Report (“PSR”) calculated Deruise’s

total offense level as 34 and his criminal history category as VI. With a total

offense level of 34 and a criminal history category of VI, the guideline range was

262 to 327 months’ imprisonment. Because Deruise had two prior felony


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convictions for battery on a law enforcement officer—predicate offenses that

qualified as “crimes of violence”—he was eligible for the career-offender

enhancement under § 4B1.1, which increased the guideline range to 322 to 387

months’ imprisonment. Both Count 5 and 6 carried statutory minimum terms of

imprisonment, 10 years for Count 5 and five years to run consecutively for Count

6.

      At Deruise’s sentencing, the district court adopted the findings of fact and

guideline calculations in the PSR. The district court sentenced him to 204 months’

imprisonment on Count 5, and a consecutive term of 60 months’ imprisonment on

Count 6, for a total term of 264 months’ imprisonment, which represented a 58-

month downward variance from the low end of the guideline range. The district

court also sentenced him to five years’ supervised release on each count, to run

concurrently.

      In 2019, Deruise filed a motion for reduction of sentence under the First

Step Act, arguing that he was eligible for a sentence reduction because his drug

conviction in Count 5 was a covered offense. In seeking a reduction of his

sentence on Count 5, Deruise argued that the district court should conduct a full

resentencing hearing, apply the law and guidelines in effect now, and, in light of

Johnson v. United States, 559 U.S. 133 (2010), resentence him as if he were not a

career offender.


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      The district court granted Deruise’s motion for a reduction of his sentence

under the First Step Act and, considering all of the facts of the case and the §

3353(a) factors, reduced his sentence on Count 5 to 168 months’ imprisonment, to

be followed by a consecutive 60-month sentence on Count 6, for a total sentence of

228 months’ imprisonment.

      After the district court’s order granting the motion, Deruise filed an

unopposed motion asking the district court to clarify whether in granting his

motion to reduce his sentence the court continued to classify Deruise as a career

offender. In response, the district court issued an order stating that a motion to

reduce sentence under the First Step Act does not authorize a full resentencing or a

sentencing de novo, and, therefore, in granting Deruise’s motion to reduce his

sentence, the court continued to treat him as a career offender. This appeal

followed.

      We review for abuse of discretion a district court’s ruling on an eligible

movant’s request for a reduced sentence under the First Step Act. United States v.

Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). Where the request poses a legal

question, however, our review is de novo. United States v. Pringle, 350 F.3d 1172,

1178-79 (11th Cir. 2003). We review de novo the district court’s statutory

interpretation, a legal issue. United States v. Segarra, 582 F.3d 1269, 1271 (11th

Cir. 2009).


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      On appeal, Deruise argues that the district court erred in concluding that it

had no authority under the First Step Act to conduct a de novo resentencing and

therefore could not consider whether Deruise still qualified as a career offender.

Deruise argues that the First Step Act authorized district courts to conduct a full

resentencing because nothing in the act limits what the court may consider in

imposing a reduced sentence, and where a statute places no restrictions on the

factors a court may consider in imposing a reduced sentence, the court may

consider all relevant § 3553(a) factors. Deruise further argues that because

Johnson called into question whether Florida battery on a law enforcement officer,

which was one of his predicate offenses, was a crime of violence, the court should

consider that change in law when reducing a sentence under the First Step Act.

      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 offenses

involving crack and powder cocaine. Fair Sentencing Act of 2010, Pub. L. No.

111-220, 124 Stat. 2372 (the “Fair Sentencing Act”); see Dorsey v. United States,

567 U.S. 260, 268-69 (2012) (detailing the history that led to enactment of the Fair

Sentencing Act, including the Sentencing Commission’s criticisms that the

disparity between crack cocaine and powder cocaine offenses was disproportional

and reflected race-based differences). Section 2 of the Fair Sentencing Act

changed the quantity of crack cocaine necessary to trigger a 10-year mandatory


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minimum from 50 grams to 280 grams and the quantity necessary to trigger a five-

year mandatory minimum from five 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

Fair Sentencing Act’s statutory penalties for covered offenses. See First Step Act

§ 404. 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).

      In United States v. Denson, we held that “the First Step Act does not

authorize the district court to conduct a plenary or de novo resentencing.” 963

F.3d 1080, 1089 (11th Cir. 2020). When ruling on a defendant’s First Step Act

motion, a district court is permitted to reduce a defendant’s sentence “only on a

‘covered offense,’ and only ‘as if’ sections 2 and 3 of the Fair Sentencing Act were


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in effect when he committed the covered offense.” Id. The district court “is not

free to change the defendant’s original guidelines calculations that are unaffected

by sections 2 and 3 [or] to reduce the defendant’s sentence on the covered offense

based on changes in the law beyond those mandated by sections 2 and 3.” Id.

Accordingly, the district court did not err in concluding that it lacked the authority

to conduct a de novo resentencing under the First Step Act to consider Deruise’s

career-offender status under current law.

      AFFIRMED.




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