              Case: 19-10333    Date Filed: 09/11/2019   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-10333
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 2:95-cr-00129-LSC-TMP-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

WILLIE CLAY MEANS,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                               (September 11, 2019)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Willie Clay Means, a federal prisoner proceeding pro se, appeals the district

court’s denial of 13 various motions for relief from his sentence, including claims

made under 18 U.S.C. § 3582(c)(2) based on the First Step Act of 2018 and claims
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challenging a sentencing enhancement under 28 U.S.C. § 851. On appeal, Means

argues that: (1) under the First Step Act of 2018, he is entitled to a lower sentence

for his crack cocaine-related convictions; and (2) his sentence was improperly

enhanced under 21 U.S.C. § 851 because one of his prior felony drug convictions

was comprised of the same conduct as his felony convictions in his instant case.

After thorough review, we affirm.

       We review de novo the district court’s conclusions about the scope of its legal

authority under § 3582(c)(2). United States v. Colon, 707 F.3d 1255, 1258 (11th

Cir. 2013). We also review de novo issues about the district court’s subject matter

jurisdiction. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). We

may affirm for any reason supported by the record. Id. Further, while we liberally

construe pro se pleadings, an argument not raised in the appellant’s opening brief is

deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).1

       First, we are unpersuaded by Means’s claim that he is entitled to a lower

sentence for his crack cocaine-related convictions based on the First Step Act of

2018. A district court may modify a defendant’s term of imprisonment if the

defendant was sentenced based on a sentencing range that has subsequently been

lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A defendant is


1
 As a result, Means has abandoned any challenge to the denial of his 13 motions beyond those
concerning the First Step Act and to his § 851 enhancement because he did not raise those
arguments in his initial brief. Id.
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eligible for a sentence reduction under § 3582(c)(2) when an amendment listed in

U.S.S.G. § 1B1.10(d) lowers his guideline range as calculated by the sentencing

court. U.S.S.G. § 1B1.10, comment. (n.1(A)). A reduction is not authorized when

a statutory provision, such as a mandatory minimum sentence, precludes an

applicable amendment from lowering the guideline range. Id. Moreover, a district

court is not authorized to reduce a defendant’s sentence under § 3582(c)(2) where a

retroactively applicable guidelines amendment reduces his base offense level but

does not alter the guideline range upon which his sentence was based. United States

v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008). So, when a defendant’s crime has

a mandatory minimum sentence that exceeds the guideline range calculated from his

total offense level and criminal history category, the defendant’s guideline range is

based on the mandatory minimum sentence. United States v. Mills, 613 F.3d 1070,

1077-78 (11th Cir. 2010).

      A defendant convicted of one of the enumerated offenses in 21 U.S.C. §

841(b)(1)(A) is subject to an enhanced mandatory minimum or maximum sentence

if he has committed a prior qualifying drug offense. 21 U.S.C. § 841(b)(1)(A). 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 powder cocaine.

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. Section 2 of the

Fair Sentencing Act changed the quantity of crack cocaine necessary to trigger a 10-


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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. Id. § 2(a)(1)-(2).

Then, § 404 of the First Step Act made these changes retroactive to prisoners

convicted on or before August 3, 2010. First Step Act of 2018, Pub. L. No. 115-

391, 132 Stat. 5194. The First Step Act authorizes the court to “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). Under the First Step Act, a

“covered offense” includes a violation of a federal criminal statute, the statutory

penalties for which were modified by section 2 of the Fair Sentencing Act of 2010,

that was committed prior to August 3, 2010. Id. § 404(a).

      The First Step Act also amended 21 U.S.C. § 841(b)(1)(A) by changing the

types of prior convictions that trigger a mandatory penalty from one or more prior

convictions for “felony drug offense[s]” to one or more “serious drug offense[s].”

Id. § 401(a)(1). Additionally, the First Step Act changed the mandatory minimum

sentence for defendants who had two or more such prior convictions from life

imprisonment to 25 years’ imprisonment. Id. However, this portion of the First Step

Act was not made retroactive to defendants who were sentenced before the Act’s

enactment on December 21, 2018. See id. § 401(c).

      Here, the district court properly denied Means’s § 3582(c)(2) motions. The

First Step Act’s changes to the triggering quantities of cocaine for the imposition of


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the mandatory sentencing scheme under § 841 do not impact Means’s sentence

because he was attributed with over five kilograms of cocaine, far in excess of the

new 280-gram triggering amount. See 21 U.S.C. § 841(b)(1)(A)(iii). And contrary

to Means’s arguments, the First Step Act modified only the relevant drug quantities

for triggering the mandatory sentencing scheme in § 841, but did not modify the

process by which the district court imposes a sentence, including its ability to

determine the quantity of drugs attributable to a defendant for sentencing purposes.

See First Step Act of 2018 § 404(b); U.S.S.G. § 2D1.1, comment. (n.5). Thus, even

if he were sentenced under the revised statute, Means would still be subject to the

statute’s mandatory sentencing scheme and a maximum sentence of life

imprisonment based on the drug quantity attributed to him. See 21 U.S.C. §

841(b)(1)(A)(iii). Moreover, the First Step Act made clear that its changes to the

mandatory sentence for a defendant with two prior felony drug convictions did not

apply retroactively to defendants sentenced prior to December 21, 2018, like Means,

who was sentenced in 1996. See First Step Act of 2018 § 401(c). Therefore, even

after the First Step Act, Means is still subject to a mandatory life sentence because

of his prior convictions.

      We also reject Means’s claim that his sentence was improperly enhanced

under 21 U.S.C. § 851, which sets forth the procedure necessary to establish a

defendant’s prior convictions. A federal prisoner seeking to collaterally challenge


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his conviction or sentence may move the court that imposed the sentence to vacate,

set aside, or correct his sentence. 28 U.S.C. § 2255(a). In order to file a second or

successive § 2255 motion to vacate, a prisoner must first obtain authorization from

our Court, which requires a showing of either newly discovered evidence of actual

innocence or “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.” Id. §

2255(h). “Without authorization, the district court lacks jurisdiction to consider a

second or successive petition.” Farris v. United States, 333 F.3d 1211, 1216 (11th

Cir. 2003).

      Here, Means’s challenge to his § 851 enhancement -- arguing that the

enhancement did not apply because one of his prior felony drug convictions was

comprised of the same conduct as his felony convictions in this case -- was a claim

attacking his sentence. As a result, he needed to bring the claim in a motion to vacate

his sentence under § 2255. See 28 U.S.C. § 2255(a). And, because Means

previously litigated a § 2255 motion that was disposed of on the merits, he was

required to seek authorization from our Court to file a successive § 2255 motion.

See id. § 2255(h). Without any authorization, the district court lacked jurisdiction

to entertain Means’s claim. See Farris, 333 F.3d at 1216. While the district court

denied rather than dismissed this claim, it referenced § 2255(h) in doing so, and we

may affirm on any ground. See Al-Arian, 514 F.3d at 1189.


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AFFIRMED.




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