Case: 20-10550    Date Filed: 09/17/2020   Page: 1 of 6



                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 20-10550
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 5:07-cr-00048-MW-GRJ-3

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,


                                      versus


BRUCE THEODORE SMITH, JR,
a.k.a. Deuce,

                                                             Defendant-Appellant.

                          ________________________

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

                               (September 17, 2020)

Before MARTIN, BRANCH and MARCUS, Circuit Judges.

PER CURIAM:

      Bruce Smith appeals the district court’s determination that Smith was not

entitled to a full resentencing to reduce his 18 U.S.C. § 924(c) sentence after it
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granted him a reduction in his sentences for crack cocaine offenses under Section

404 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”).

On appeal, Smith argues that the district court erred when it held that he was not

entitled to a full resentencing because 18 U.S.C. § 3582(c)(1)(B) authorizes the court

to modify a sentence to the extent expressly permitted by statute and the First Step

Act does not limit a court’s authority to conduct a full resentencing. After thorough

review, we affirm.

      We review for abuse of discretion a district court’s ruling on an eligible

movant’s request for a reduced sentence under the First Step Act. United States v.

Jones, 

, 1296 (11th Cir. 2020). However, where the issue presented

involves a legal question, like a question of statutory interpretation, our review is de

novo. Id.; United States v. Pringle, 

, 1178-79 (11th Cir. 2003). While

district courts lack the inherent authority to modify a term of imprisonment unless,

for example, a statute expressly permits them to do so, 18 U.S.C. § 3582(c)(1)(B),

the First Step Act expressly allows them to reduce a previously imposed term of

imprisonment in certain situations. 

.

      In 2010, before the First Step Act, Congress enacted the Fair Sentencing Act,

which amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the sentencing disparity

between crack and powder cocaine. Fair Sentencing Act; see Dorsey v. United

States, 

, 268–69 (2012) (detailing the history that led to enactment of


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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 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).

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

statutory penalties for covered offenses 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.”

statute makes clear that “[n]othing in this section shall be construed to

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

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      In United States v. Denson, we held that a defendant does not have a right to

be present at a hearing on his motion for a sentence reduction under § 404 of the

First Step Act and that his absence does not violate the right to due process. 

, 1087-88 (11th Cir. 2020). In so holding, we explained that the First Step

Act does not authorize a district court to conduct a plenary or de novo resentencing

in which it reconsiders sentencing guideline calculations unaffected by §§ 2 and 3

of the Fair Sentencing Act, reduces the defendant’s sentence based on changes in the

law beyond those mandated by §§ 2 and 3, or changes the defendant’s sentences on

counts that are not “covered offenses.”

      Prior to the First Step Act, under 18 U.S.C. § 924(c), in the case of a second

or subsequent conviction under § 924(c), a defendant was to be “sentenced to a term

of imprisonment of not less than 25 years.” 18 U.S.C. § 924(c)(1)(C)(i). Section

403(a) of the First Step Act amended this language so that for the mandatory

minimum of 25 years’ imprisonment to apply to a defendant’s second § 924(c)

violation, the first § 924(c) conviction had to be final. First Step Act § 403(a). The

amendments applied only to defendants who had not been sentenced by the

enactment date of the First Step Act, December 21, 2018.

Smith pled guilty and was sentenced to 240 months’ imprisonment as

to each of Counts 1, 2, and 5 -- one count of conspiracy to manufacture, distribute,

and possess with intent to distribute more than 50 grams of crack cocaine, and two


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counts of possession with intent to distribute more than five grams of crack cocaine

-- to be served concurrently; 60 months’ imprisonment as to Count 3 -- one count of

possessing a firearm during and in furtherance of a drug trafficking crime -- to be

served consecutively; and 300 months’ imprisonment as to Count 6 -- another count

of possessing a firearm during and in furtherance of a drug trafficking crime -- to be

served consecutively, for a total term of 600 months’ imprisonment. At Smith’s

sentence reduction hearing, the district court reduced Smith’s sentences from 240

months’ imprisonment to 120 months’ imprisonment on each of Counts 1, 2, and 5,

to be served concurrently, but maintained the sentences of 60 months’ imprisonment

as to Count 3 and 300 months’ imprisonment as to Count 6, both to run

consecutively, for a total sentence of 480 months’ imprisonment. The district court

also modified Smith’s term of supervised release, reducing it from 10 years to 8

years.

         On appeal, the parties do not dispute that Smith’s crack cocaine offenses in

Counts 1, 2, and 5 were “covered offenses” under § 404 of the First Step Act nor

that Smith was eligible for a reduction of those sentences under the First Step Act.

The only issue before us is whether the district court erred in concluding that Smith

was not entitled to a full resentencing on all of his counts of conviction.

         Based on the clear language of the First Step Act and our recent holding in

Denson, the district court did not err. For starters, Smith was sentenced prior to the


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First Step Act’s enactment in 2018, which means that the § 403 amendments to §

924(c)’s penalties -- which now require a first § 924(c) conviction to be final before

a 25-year mandatory minimum applies to a second § 924(c) violation -- did not apply

to him and did not affect his sentence on Count 6. See First Step Act § 403(b)

(specifying that the amendments in § 403 applied only to defendants who had not

been sentenced by the enactment date of the First Step Act, December 21, 2018).

      Further, because the sentence on Count 6 was unaffected by §§ 2 and 3 of the

Fair Sentencing Act and was not a “covered offense,” the district court correctly

concluded that it could not conduct a plenary resentencing in which it reduced the

sentence on Count 6. 

. We held in Denson that there are

only limited situations in which a district court can modify a sentence under the First

Step Act, and none of them apply to Smith’s sentence on Count 6.

court did not err by concluding that it did not have the authority to

conduct a de novo resentencing under the First Step Act to reduce Smith’s sentence

on Count 6, and we affirm.

      AFFIRMED.




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