Case: 19-14045    Date Filed: 09/18/2020   Page: 1 of 5



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-14045
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:08-cr-20896-MGC-2


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus


JOHNNY JASMIN,

                                                         Defendant-Appellant.

                      ________________________

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

                            (September 18, 2020)



Before JORDAN, NEWSOM and BLACK, Circuit Judges.

PER CURIAM:
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      Johnny Jasmin appeals the district court’s denial of his motion for a reduced

sentence based on the First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132

Stat. 5194, 5222. Jasmin asserts the district court erred by denying his motion for

a sentence reduction based on his reduced advisory Guidelines range rather than

the reduced statutory mandatory minimum. After review, we vacate the order

denying Jasmin’s motion and remand for further proceedings.

      In 2009, in a second superseding indictment, a grand jury charged Jasmin

with, inter alia, conspiring to distribute 50 or more grams of crack cocaine. 21

U.S.C. § 841(a)(1), (b)(1)(A)(iii). Jasmin entered a guilty plea, and the plea

agreement noted Jasmin was subject to a statutory range of 10-years to life

imprisonment. Jasmin’s PSI, using the 2010 Guidelines manual, stated Jasmin

pleaded guilty to “conspiracy to distribute 50 grams or more of cocaine base.”

Based on this amount of crack cocaine, the PSI calculated Jasmin’s base offense

level as 34, pursuant to U.S.S.G. § 2D1.1(c)(1). It added two points for the

possession of a dangerous weapon, pursuant to § 2D1.1(b)(1). However, based on

Jasmin’s criminal history, he qualified for career offender status, under § 4B1.1(a),

resulting in a base level offense of 37, which was further reduced by 3 points,

under § 3E1.1(a)-(b), for his acceptance of responsibility. Based on a total offense

level of 34 and a criminal history category of VI, the Guidelines range was 262 to

327-months’ imprisonment and at least 5 years’ supervised release. At sentencing,


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the district court varied downward from the Guidelines range and sentenced Jasmin

to 163-months’ imprisonment and 5-years’ supervised release, noting his personal

characteristics and the nature of the offense in comparison to the sentences of his

co-conspirators.

       Jasmin moved for a sentence modification, under § 3582(c)(1)(B), pursuant

to changes enacted by the First Step Act. 1 He asserted he was eligible for relief

under the First Step Act because he was sentenced for 50 grams or more of crack

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

modified the statutory range for his offense, and the sentencing court’s downward

variance did not negatively impact his eligibility. Additionally, the 18 U.S.C.

§ 3553(a) sentencing factors, particularly the steps he had taken toward

rehabilitation, weighed in favor of a reduction.

       In a one-page order, the district court denied Jasmin’s motion, stating that:

       The defendant is not entitled to a reduction of sentence pursuant to the
       First Step Act of 2018. The defendant’s amended guideline range
       pursuant to the retroactive application of the Fair Sentencing Act of
       2010 does change his advisory guidelines. The defendant’s previous
       guideline range was 262-327 months. The defendant received a
       sentence of 163 months, a 99-month variance below the advisory
       guideline range. The defendant’s amended computation is 188-235
       months. A reduction of sentence is inappropriate.



       1
         Jasmin previously moved three times for sentence modifications, pursuant to
§ 3582(c)(2), all of which the district court denied because it either lacked the authority to
modify or found a modification was not warranted.
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      Jasmin is eligible for a reduction of his prison sentence. See United States v.

Jones, 

, 1296 (11th Cir. 2020) (reviewing de novo whether a district

court had the authority to modify a term of imprisonment). The First Step Act

made retroactive the statutory penalties for a “covered offense” under the Fair

Sentencing Act. First Step Act § 404. A movant is convicted of a “covered

offense” if he was convicted of a crack-cocaine offense that triggered the penalties

in § 841(b)(1)(A)(iii) or (B)(iii), 

, and “if section two or

three of the Fair Sentencing Act modified its statutory penalties,”

Jasmin pleaded guilty to the charge of conspiring to distribute 50 grams or more of

crack cocaine, §841(b)(1)(A)(iii). As a result, based on the 50 grams or more of

crack cocaine, the statutory range for the offense was originally 10-years to life

imprisonment, but, under the Fair Sentencing Act, the same offense would lead to

a statutory range of 5-years to 40-years of imprisonment. See 21 U.S.C.

§ 841(b)(1)(B)(iii) (2009);

Accordingly, Jasmin’s offense qualified as a

covered offense. See 

, 1301-02.

      The First Step Act permitted the district court to reduce Jasmin’s prison

sentence. “Any reduction must be ‘as if sections 2 and 3 of the Fair Sentencing

Act . . . were in effect at the time the covered offense was committed.’” 

(quoting First Step Act § 404b)). Because Jasmin’s sentence of 163

months’ imprisonment exceeded the statutory mandatory-minimum sentence of 5


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years of imprisonment provided in the Fair Sentencing Act, the district court had

the authority to reduce his sentence under the First Step Act.

       However, it is unclear whether the district court recognized its authority to

reduce Jasmin’s sentence based on the statutory range rather than the revised

Guidelines range. See 

, 1304-05. In its order denying

Jasmin’s motion for reduction of sentence, the court identified the retroactivity of

the Fair Sentencing Act as the basis for its order, but it erroneously speaks

exclusively to the Fair Sentencing Act’s impact on Jasmin’s Guidelines range, not

acknowledging any role played by the statutory range. Jones makes clear that,

when the record is ambiguous as to whether the district court understood its

authority under the First Step Act, we must vacate the order denying relief and

remand for further 

. Thus, because of its reference

solely to the impact on Jasmin’s Guidelines range rather than the statutory

mandatory-minimum sentence, the record is unclear whether the district court

understood the scope of its authority, and we vacate and remand the order for

further proceedings. 2

       VACATED and REMANDED.




       2
           A district court “may,” but is not “require[d] . . . to reduce [the] sentence,” of an
eligible movant. First Step Act § 404(b),(c). Further, because we vacate and remand for
clarification whether the district court understood the scope of its authority, we need not consider
whether the district court’s explanation for declining to reduce the sentence was sufficient.
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