Case: 19-11570    Date Filed: 09/16/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11570
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 2:94-cr-14098-WPD-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JOHNNY LEE LEONARD,
a.k.a. Crow,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 16, 2020)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Johnny Lee Leonard appeals the district court’s order denying his motion to

reduce his sentences, pursuant to § 404(b) of the First Step Act of 2018, Pub. L.

No. 115-391, 132 Stat. 5194 (First Step Act). His appeal also includes the district

court’s amended judgment and order denying his reconsideration motion. 1 Among

other things, he argues that he is eligible for and deserves relief under the First

Step Act as to all counts, and that it is unclear whether the district court found him

ineligible or denied him relief as an exercise of discretion. One way or another, he

says, the district court abused its discretion. After briefing was completed in

Leonard’s appeal, we issued United States v. Jones, 

(11th Cir.

2020), which interpreted the First Step Act and addressed how to apply it to cases

like Leonard’s. In supplemental authority letters, the parties reanalyzed Leonard’s

case under Jones. After careful review, and under Jones, we vacate the district

court’s orders and remand for the court to consider whether to exercise its

discretion to reduce Leonard’s sentence under the First Step Act.




       1
          Leonard does not designate the district court’s clarification order in his notice of appeal,
but his intent to appeal that order is otherwise clear, as unnoticed issues in that order are
inextricably intertwined with the issues in the court’s original order. See Fed. R. App. P. 3(c)(4);
Hill v. BellSouth Telecomms., Inc., 

, 1313 (11th Cir. 2004) (noting that this court
“embraces a policy of liberal construction of notices of appeal when (1) unnoticed claims or
issues are inextricably intertwined with noticed ones and (2) the adverse party is not prejudiced”
(internal quotation marks omitted)). Additionally, Leonard’s motion for reconsideration was not
filed within 14 days after the entry of the judgment being appealed and, thus, failed to extend the
time to appeal. But this is a claims-processing rule that has been waived by the government on
appeal. See Fed. R. App. P. 4(b)(1)(A)(i); United States v. Lopez, 

, 1312–13 (11th
Cir. 2009).
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                                          I

      We review de novo whether a district court had the authority to modify a

term of imprisonment.

District courts may modify a term of

imprisonment to the extent that a statute expressly permits. 18 U.S.C.

§ 3582(c)(1)(B). “[T]he First Step Act expressly permits district courts to reduce a

previously imposed term of imprisonment.” 

. We review

the district court’s denial of an eligible movant’s request for a reduced sentence

under the First Step Act for an abuse of discretion.

A district court

abuses its discretion when it applies an incorrect legal standard. Diveroli v. United

States, 

, 1262 (11th Cir. 2015).

      Among other things, the Fair Sentencing Act of 2010 amended 21 U.S.C.

§ 841(b)(1) to reduce the sentencing disparity between crack and powder cocaine.

Pub. L. No. 111-220, 124 Stat. 2372 (Fair Sentencing Act); see Dorsey v. United

States, 

, 268–69 (2012) (detailing the history that led to the 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 minimum from 50 grams to 280 grams and the quantity necessary

to trigger a 5-year mandatory minimum from 5 grams to 28 grams. Fair

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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, 

, 377 (11th Cir. 2012) (per curiam).

      In 2018, Congress made retroactive for covered offenses the statutory

penalties enacted under the Fair Sentencing Act. 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.”

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.”

First Step Act further states that “[n]othing in this section shall be construed to

require a court to reduce any sentence pursuant to this section.”

Jones, we elaborated on the threshold “covered offense” requirement,

plus two limitations on authority for sentence reductions under the First Step 

–1303. A covered offense is one that “triggered a statutory

penalty that has since been modified by the Fair Sentencing Act,” for example,

those in 21 U.S.C. § 841(b)(1)(A)(iii) or (B)(iii). 

, 1301.

Even if a movant has a covered offense, a court must consider two more limitations

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on authority.

First, a court may not “reduc[e] a movant’s sentence if

he received the lowest statutory penalty that also would be available to him under

the Fair Sentencing Act.”

what a movant’s statutory

penalty would be under the Fair Sentencing Act, the district court is bound by a

previous finding of drug quantity that could have been used to determine the

movant’s statutory penalty at the time of sentencing.”

in Jones, we vacated and remanded the denials of two of the movants’

motions because the district courts had authority to reduce their sentences under

the First Step Act, but it was unclear whether the courts had recognized that

authority.

      In this case, the district court had authority to reduce Leonard’s sentence

under the First Step Act. To start, each of Leonard’s counts was a “covered

offense” because each involved crack cocaine and a violation of 21 U.S.C.

§ 841(a)(1), triggering the penalties of § 841(b)(1)(A)(iii) and (B)(iii), which the

Fair Sentencing Act modified. See 

, 1301.

      At the time of sentencing, the PSI contained findings regarding the amounts

of crack cocaine that related to each count: 131.5, 5.6, 39.5, 39.5, and 84.5 grams,

respectively. The district court adopted those findings for sentencing purposes and

upheld an enhancement based on Leonard’s prior felony drug convictions.

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        Under those facts, the court sentenced Leonard to concurrent terms of life

imprisonment as to each of Counts 1 through 3 and 5, and 80 years as to Count 4.

Additionally, the court imposed supervised release terms of 10 years as to Counts 1

and 5, and 8 years as to Counts 2 through 4.

        In determining what Leonard’s statutory penalties would be under the Fair

Sentencing Act, the PSI drug-amount findings that the district court adopted

control. See 

. At bottom, Leonard did not receive the

lowest statutory penalties that would be available to him under the Fair Sentencing

Act. See 21 U.S.C. § 841(b)(1)(B)(iii), (b)(1)(C);

the

district court had authority to reduce Leonard’s sentences. See 

.

        But here, as in Jones, it is not clear from any of the district court’s orders

whether the district court understood the extent of its authority to resentence

Leonard under the First Step Act. See

Its discussion focused only

on guideline ranges; it gave no discernable analysis of Leonard’s eligibility or its

authority to reduce Leonard’s sentences under the First Step Act. The government

insists that the district court exercised its discretion and did so properly as to some

of Leonard’s counts. But at best the district court’s discussion is “ambiguous” as

to whether the district court was exercising discretion. See

And Jones

makes clear that, when we cannot tell what the correct reading of a district court’s

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order is, vacatur and remand is warranted.

and remand

for the district court to reconsider Leonard’s motion with a full understanding of its

authority under the First Step Act.

      VACATED AND REMANDED.




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