              Case: 19-10926    Date Filed: 02/18/2020    Page: 1 of 5


                                                              [DO NOT PUBLISH]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
                         ________________________

                                (February 18, 2020)

Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges.

PER CURIAM:

      Oscar Brown Jr., a federal prisoner, appeals pro se the denial of his fourth

motion to reduce his sentence. 18 U.S.C. § 3582(c). Brown requested a reduction
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based on the First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194.

We affirm.

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

kilograms of cocaine base 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.

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

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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 the scope of the legal authority of the district court to

reduce a sentence.” United States v. Puentes, 803 F.3d 597, 605 (11th Cir. 2015)

(quoting United States v. Green, 764 F.3d 1352, 1355 (11th Cir. 2014)). “[T]he

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district court has no inherent authority to modify a sentence; it may do so only

when authorized by a statute or rule.” Id. at 606. We can affirm the decision of the

district court for any reason supported by the record. United States v. Chitwood,

676 F.3d 971, 975 (11th Cir. 2012).

      The First Step Act gives a district court discretion to reduce the sentence of a

defendant convicted on or before August 3, 2010, of a drug offense for which the

“statutory penalties . . . were modified by section 2 . . . of the Fair Sentencing Act

of 2010.” 132 Stat. 5194, § 404(a), (b). The First Step Act makes section 2 of the

Fair Sentencing Act retroactive, which increases the quantity of crack cocaine

necessary to impose a mandatory minimum sentence for distributing drugs, 21

U.S.C. § 841(b)(1)(A), from 50 grams to 280 grams, Pub. L. 111-220, § 8, 124

Stat. 2372 (2010). 132 Stat. 5194, § 404(b). If the defendant is eligible for relief

under section 2 of the Fair Sentencing Act and is not otherwise excluded from

relief for reasons specified in the First Step Act, the district court may, but is not

required to, “impose a reduced sentence as if . . . the Fair Sentencing Act . . . w[as]

in effect at the time the [drug] offense was committed.” Id. § 404(b), (c).

      Although Brown’s motion should have been treated as seeking relief under

section 3582(c)(1)(B) instead of section 3582(c)(2), the district court was not

“expressly permitted by” the terms of the First Step Act to reduce his sentence. See

18 U.S.C. § 3582(c)(1)(B). The First Step Act allows district courts to reduce

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sentences of defendants who distributed less than 280 grams of cocaine. Because

Brown admitted that he was responsible for distributing 1,500 grams of cocaine, he

remains subject to the same mandatory minimum sentence and a maximum

sentence of life imprisonment. The First Step Act cannot serve as a basis to reduce

Brown’s sentence.

      Reading Brown’s brief liberally, he argues that the district court contravened

Apprendi, 530 U.S. 466, when it denied his motion to reduce by attributing a drug

quantity to him without the amount being charged in an indictment or proved to a

jury, but we held on direct appeal that no reversible error under Apprendi occurred

in sentencing him. Brown, No. 95-9422, slip op. at 14–15. That decision is the law

of the case and bars Brown’s challenge to the denial of his fourth motion to reduce.

See United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005).

      We AFFIRM the denial of Brown’s motion to reduce.




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