USCA11 Case: 19-14684   Date Filed: 10/22/2020   Page: 1 of 11



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-14684
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:96-cr-00119-RWS-JED-2



UNITED STATES OF AMERICA,

                                                              Plaintiff–Appellee,

                                 versus

TONY JAMES, JR.,

                                                        Defendant–Appellant.

                      ________________________

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

                           (October 22, 2020)
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Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.

PER CURIAM:

       Tony James, Jr., appeals the district court’s denial of his motion for a sentence

reduction under § 404 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194

(“First Step Act”). Specifically, James argues that the district court erred in

concluding that he was ineligible for relief under § 404 because he had not been

sentenced for a “covered offense.” After careful review, we vacate and remand for

the district court to consider whether to exercise its discretion under the First Step

Act.

I.     FACTUAL BACKGROUND

       In December 1996, a jury convicted James of conspiracy to possess with intent

to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (“Count

1”); possession with intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) (“Count 4”); and unlawful possession of a firearm, in violation of 18

U.S.C. § 922(g)(1) (“Count 5”). The indictment does not allege, and the jury did not

find, a specific amount of crack cocaine involved in these offenses.

       Instead, the quantity of crack cocaine attributable to James was determined by

the district court at sentencing.     Specifically, after hearing testimony from a

government agent, the district court adopted the findings of the presentence

investigation report (“PSI”) that James was responsible for 7,699.1 grams of crack


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cocaine. Based on this amount of crack cocaine, the statutory guideline range would

be ten years to life on Counts 1 and 4. See 21 U.S.C. § 841(b)(1)(A)(iii). But

because James had a criminal history category of VI and a total offense level of 46,

James’s actual guideline range was life imprisonment.

       The district court sentenced James to life imprisonment for Counts 1 and 4

and ten years’ imprisonment to run concurrent with the life sentence for Count 5.

This Court affirmed James’s sentence and conviction on appeal. United States v.

James, 183 Fed. App’x 923 (11th Cir. 2006). In 2015, James and the government

filed a joint motion to reduce James’s sentence pursuant to Amendment 782 to the

U.S. Sentencing Guidelines. The district court granted the motion and, based on a

revised total offense level of 42 and an amended guideline range of 360 months’ to

life imprisonment, reduced James’s life sentence to 360 months.

       After Congress passed the First Step Act, James moved for another sentence

reduction, arguing that the district court should reduce his prison sentence to 240

months.1 James reasoned that the district court must look only to his indictment to

determine whether he was convicted of a “covered offense” for purposes of the First

Step Act, and because his indictment does not specify the amount of crack cocaine

involved in his offenses, his maximum statutory sentence is 240 months. See 21


       1
         James initially submitted his First Step Act motion as a pro se filing. The district court
denied that motion without prejudice after appointing counsel for James and receiving James’s
amended motion.
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U.S.C. § 841(b)(1)(C). Along with his motion, James attached documents showing

his good behavior and his educational achievements while in prison.

      In response, the government asserted that James is not eligible for a sentence

reduction under the First Step Act because eligibility for such a sentence reduction

is based on the actual quantity involved in the offense and not simply what the

indictment says. Thus, according to the government, James could not seek a

reduction because, for sentencing purposes, the district court found that James was

responsible for over 7.5 kilograms of crack cocaine, and, as a result, James’s

statutory imprisonment range remained the same.

      The district court denied James’s motion, finding that James is not entitled to

relief under the First Step Act because “Defendant’s offense is not a covered

offense.” The district court relied on the previous finding by the sentencing judge

that James was responsible for over 7.5 kilograms of crack cocaine and concluded

that James cannot show that his guideline range would have been lower had the

penalty statute appliable to James been different at the time of his sentencing. This

appeal ensued.

II.   STANDARD OF REVIEW

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

of imprisonment. United States v. Jones, 

, 1296 (11th Cir. 2020). We

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


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sentence under the First Step Act for an abuse of discretion.

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

States, 

, 1262 (11th Cir. 2015) (quoting Winthrop-Redin v. United

States, 

, 1215 (11th Cir. 2014)).

III.   ANALYSIS

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

(“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.     See Dorsey v. United States, 

, 268–69 (2012)

(detailing the history that led to 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 raised 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 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). The Fair Sentencing Act did not expressly make

any changes to § 841(b)(1)(C), which provides for a term of imprisonment of not


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more than 20 years for cases involving quantities of crack cocaine that do not fall

within § 841(b)(1)(A) or (B).        See Fair Sentencing Act § 2(a); 21 U.S.C.

§ 841(b)(1)(C).

      In 2018, Congress enacted the First Step Act, which made retroactive the

statutory penalties for covered offenses enacted under the Fair Sentencing Act, and

expressly granted district courts the authority to reduce a previously imposed term

of imprisonment. See First Step Act § 404; see also 

. Under

First Step Act § 404(b), “[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 a “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 considered the appeals of four federal prisoners whose motions

for a reduction of sentence pursuant to § 404(b) were denied in the district courts.

See 

. First, we held that a movant was 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).

Interpreting the First Step


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Act’s definition of a “covered offense,” we concluded that the phrase “the statutory

penalties for which were modified by section 2 or 3 of the Fair Sentencing Act” (the

“penalties clause”) modifies the term “violation of a Federal criminal statute.”

(emphasis removed); see First Step Act § 404(a). Thus, “a movant’s offense

is a covered offense if section two or three of the Fair Sentencing Act modified its

statutory penalties.” 

. Because section two of the Fair

Sentencing Act “modified the statutory penalties for crack-cocaine offenses that

have as an element the quantity of crack cocaine provided in subsections

841(b)(1)(A)(iii) and (B)(iii),” a covered offense includes one where the movant was

sentenced for an offense that triggered one of those statutory penalties.

consult the record, including the movant’s charging

document, the jury verdict or guilty plea, the sentencing record, and the final

judgment, to determine whether the movant’s offense triggered the penalties in

§ 841(b)(1)(A)(iii) or (B)(iii) and, therefore, is a covered offense.

We rejected the government’s argument that, when conducting this inquiry, the

district court should consider the actual quantity of crack cocaine involved in the

movant’s violation.

Rather, the district court should consider only

whether the quantity of crack cocaine satisfied the specific drug quantity elements

in § 841—in other words, whether his offense involved 50 grams or more of crack




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cocaine, therefore triggering § 841(b)(1)(A)(iii), or between 5 and 50 grams,

therefore triggering § 841(b)(1)(B)(iii).

amount of drugs involved in the movant’s offense

beyond the amount related to his statutory penalty is not relevant to whether he was

convicted of a covered offense.

However, contrary to the movants’

arguments, the district court’s actual drug-quantity finding remains relevant to the

extent that it triggered a higher statutory penalty.

Thus, a movant

sentenced prior to Apprendi v. New Jersey, 

(2000), in which the

Supreme Court held that facts, such as a drug quantity, that increase a defendant’s

statutory maximum must be made by a jury, cannot “redefine his offense” to one

triggering a lower statutory penalty simply because the district court, not a jury,

made the drug-quantity finding relevant to his statutory penalty. See 

. Applying this inquiry to the four movants in Jones, we concluded that all

four were sentenced for covered offenses because they were all sentenced for

offenses whose penalties were modified by the Fair Sentencing Act.

      Next, we explained that a movant’s satisfaction of the “covered offense”

requirement does not necessarily mean that the district court is authorized to reduce

his sentence.

Specifically, the “as if” qualifier in Section 404(b) of the

First Step Act, which states that 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


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committed,” imposes two limitations on the district court’s authority.

(quoting First Step Act § 404(b)). First, the district court cannot reduce

a sentence where the movant received the lowest statutory penalty that would also

be available to him under the Fair Sentencing Act.

what

a movant’s statutory penalty would have been under the Fair Sentencing Act, the

district court is bound by a previous drug-quantity finding that was used to determine

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

does not prohibit the district court from relying on judge-found facts

that triggered statutory penalties prior to Apprendi. See

      Applying these limitations, we held that if a movant’s sentence necessarily

would have remained the same had the Fair Sentencing Act been in effect—in other

words, if his sentence was equal to the mandatory minimum imposed by the Fair

Sentencing Act for the quantity of crack cocaine that triggered his statutory

penalty—then the Fair Sentencing Act would not have benefitted him, and the First

Step Act does not authorize the district court to reduce his sentence.

      And based on this framework, we affirmed the denials of two of the movants’

motions, but vacated and remanded as to the other two 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.

We held that it

was error for the district courts to conclude that a movant was ineligible based on


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(1) a higher drug-quantity finding that was made for sentencing—not statutory—

purposes, (2) a movant’s career-offender status, or (3) a movant’s sentence being at

the bottom of the guideline range.

ambiguous whether the district

courts denied their motions for one of those reasons, we vacated and remanded the

denials for further consideration.

      Here, like in Jones, the parties dispute whether James was sentenced for a

“covered offense,” as required by the First Step Act. James argues for a “covered

offense” determination based solely on the indictment. The government contends

that we should look to “the actual quantity of crack cocaine involved” in James’s

offense to determine whether his offense is a “covered offense.” But as explained

in Jones, neither party is entirely correct. Instead, in conducting the “covered

offense” inquiry, we must look to the entire record—including judicial

determinations of drug quantity for sentencing purposes—to determine whether

James was sentenced under one of the provisions amended by the Fair Sentencing

Act. See 

–02.

      Here, the district court sentenced James for a crack cocaine-related violation

of 21 U.S.C. § 841(a) and found James responsible for over 7.5 kilograms of crack

cocaine. Applying this quantity to the penalties in § 841(b), James was sentenced

under § 841(b)(1)(A)(iii) because his offense involved more than fifty grams of

crack cocaine and his prescribed statutory imprisonment range was ten years to life.


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21 U.S.C. § 841(b)(1)(A)(iii) (“[S]uch person shall be sentenced to a term of

imprisonment which may not be less than 10 years or more than life.”). This

statutory penalty provision was modified by § 2 of the Fair Sentencing Act. See Fair

Sentencing Act § 2(a)(1) (increasing the threshold for penalties under subparagraph

(b)(1)(A)(iii) from 50 grams to 280 grams). James therefore met the “covered

offense” requirement under § 404 of First Step Act. Accordingly, the district court

erred in denying James’s motion for a sentence reduction on the basis that he had

not been sentenced for a covered offense.

IV.   CONCLUSION

      Because the district court had the discretion to reduce James’s sentence as his

amended sentence of 360 months’ imprisonment is above the amended statutory

minimum, we vacate and remand so that the district court may consider whether to

exercise its discretionary authority under the First Step Act to reduce James’s

sentence.

      VACATED AND REMANDED.




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