USCA11 Case: 19-12846    Date Filed: 10/06/2020   Page: 1 of 6



                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 19-12846 & 19-12921
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 9:95-cr-08094-UU-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus

CARLOS E. SHAW,

                                                          Defendant-Appellant.

                      ________________________

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

                            (October 6, 2020)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Carlos Shaw appeals from the district court’s denial of his motion for a

reduction of sentence under the First Step Act. Because Mr. Shaw has at least some

covered offenses under the Act, and because it is unclear whether the district court

denied his motion in the exercise of its discretion, we reverse and remand for further

proceedings.1


       In 1996, a federal grand jury returned a twelve-count superseding indictment

against Mr. Shaw, charging him with various powder cocaine and cocaine base (i.e.,

crack cocaine) offenses. Prior to trial, the government filed its notice of intent to

rely on Mr. Shaw’s three prior felony drug convictions to enhance his sentence. See

21 U.S.C. § 851.

       The jury convicted Mr. Shaw on all counts. At the sentencing hearing, held

in 1997, the district court agreed with the government’s request for a mandatory

minimum life sentence because Mr. Shaw had three prior felony drug convictions

and 1.5 kilograms of crack cocaine were attributable to him. See 21 U.S.C. §§

841(b)(1)(A)(iii), 851. The district court sentenced Mr. Shaw to concurrent terms

of life imprisonment on each of the counts of conviction. On appeal, we affirmed

Mr. Shaw’s convictions. See United States v. Shaw, 

(11th Cir. 2000)

(table).


1
 As we write for the parties, we assume their familiarity with the record and set out only what is
necessary to explain our decision.
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      In 2019, Mr. Shaw, proceeding pro se, moved in the district court for a

reduction of his sentence under Section 404 of the First Step Act of 2018,

Pub. L. 115-391, 132 Stat. 5194. Mr. Shaw argued that the jury convicted him of

covered offenses under the Act and asked the district court to exercise its discretion

under the Act to reduce his sentence on those convictions to twenty years’

imprisonment. See D.E. 189 at 1, 3–5. The government, opposing Mr. Shaw’s

motion, argued that “even if the First Step Act applied to his sentences for the crack

cocaine offenses,” the motion should be denied because he was also serving

mandatory life in prison for non-covered offenses. See D.E. 192 at 5.

      The district court denied Mr. Shaw’s motion. It explained that he had five

convictions involving over 100 kilograms of powder cocaine, and these

convictions—which resulted in five mandatory (and concurrent) terms of life

imprisonment—were not “covered offenses” under the Act because they did not

involve crack cocaine. See D.E. 195 at 1. “Thus, even if [it] could reduce the term

of imprisonment for [Mr. Shaw’s] crack cocaine convictions, [he] would still be

subject to a life term imprisonment for the non-covered offenses.”

In its

order denying Mr. Shaw’s motion for reconsideration, the district court stated that

“First Step Act relief is not warranted due to [Mr. Shaw’s] powder cocaine

convictions.” D.E. 197 at 1.

      Mr. Shaw, again proceeding pro se, now appeals. He contends that the jury


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convicted him of covered offenses, and he is therefore eligible for relief under the

First Step Act.

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

of imprisonment under the First Step Act. See United States v. Jones, 

,

1296 (11th Cir. 2020). We then review the district court’s denial of an eligible

movant’s request for a reduced sentence under the Act for an abuse of discretion.

See

       In Jones, we held that the First Step Act grants the district court the authority

to modify a sentence if the defendant was sentenced for a “covered offense,” which

as relevant here is a crack cocaine offense that “triggered the higher penalties in [21

U.S.C. § 841](b)(1)(A)(iii) or (B)(iii).” See 

. Notably,

as to two defendants in that case, Mr. Allen and Mr. Johnson, we concluded that they

had been convicted of covered offenses under the Act and vacated the orders denying

them relief, as it was not clear whether the district court “understood its authority to

reduce the . . . sentence below the revised guideline range.”

       Applying Jones to this case, we agree with Mr. Shaw and the government that

at least some of Mr. Shaw’s crack cocaine convictions were covered offenses under




2
  Because the parties filed their briefs before we decided Jones, we asked them to provide
supplemental briefing on the effect of Jones to their case. In its supplemental brief, the government
concedes that Mr. Shaw was eligible for a sentence reduction under the Act because his crack
cocaine convictions constitute covered offenses.
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the First Step Act. See 

; United States v. Denson, 

, 1083-84 (11th Cir. 2020). The only question, then, is whether the district

court denied relief because it thought that Mr. Shaw did not have any covered

offenses or because, in the exercise of its discretion, it did not believe that a sentence

reduction was appropriate. As we explained in Jones and Denson, the grant of relief

under the First Step Act is discretionary. See, e.g., 

.

      In our view, the district court’s orders denying relief are ambiguous. In its

initial order, the district court stated that “even if [it] could reduce the term of

imprisonment for [Mr. Shaw’s] crack cocaine convictions, [he] would still be subject

to a life term imprisonment for the non-covered offenses.” D.E. 195 at 1-2. In its

order denying Mr. Shaw’s motion for reconsideration, the district court stated that it

“ha[d] already concluded that First Step Act relief is not warranted due to [Mr.

Shaw’s] powder cocaine convictions.” D.E. 197 at 1.

      The district court never expressly acknowledged that Mr. Shaw had covered

offenses, or that it had discretion to grant relief on those covered offenses. Nor did

it say that it was declining to exercise its discretion. Though one possible reading

of the orders—the reading the government advocates—is that the district court was

indeed exercising its discretion, we are just not confident that this is the only

appropriate interpretation. On the record before us, “[w]e cannot be sure that the

district court understood its authority to reduce [Mr. Shaw’s] sentence” as it relates


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to his covered offenses. See 

.

      For example, in Jones the district court overseeing Mr. Allen’s case denied

relief under the First Step Act because (1) Mr. Allen’s existing sentence was 360

months (due to a presidential commutation), and (2) Mr. Allen, as a career offender,

would still score out to a sentencing range of 360 months-life under the Sentencing

Guidelines. Nevertheless, we were not sure that the district court had exercised its

discretion in denying Mr. Allen’s motion under the First Step Act, and vacated and

remanded for further proceedings. See

the same conclusion about

Mr. Johnson. The district court in his case had denied relief because Mr. Johnson’s

current sentence, due to a presidential commutation, was already two years less than

the revised imprisonment range under the Sentencing Guidelines. As a result, the

district court thought that the First Step Act afforded Mr. Johnson with no relief. We

ruled that the district court’s order was ambiguous, and vacated and remanded. See

same cautious course here.

      VACATED AND REMANDED.




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