USCA11 Case: 19-12385    Date Filed: 10/07/2020   Page: 1 of 9



                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12385
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:00-cr-06353-WPD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JEFFERSON LEVINE,

                                                          Defendant-Appellant.

                       ________________________

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

                             (October 7, 2020)

Before MARTIN, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Jefferson Levine appeals the district court’s denial of his motion to reduce

his sentence under Section 404 of the First Step Act.1 On appeal, he argues that

the district court abused its discretion by denying his motion because it failed to

properly consider the 18 U.S.C. § 3553(a) factors and his post-sentencing conduct

or to explain how his current sentence was sufficient but not greater than necessary

to comply with the purposes of sentencing.

                                               I.
       In 2000, a federal grand jury charged Levine with possession with intent to

distribute crack cocaine “in excess of five (5) grams” (Count 1), and possession

with intent to distribute crack cocaine “in excess of fifty (50) grams” (Count 2),

both in violation of 21 U.S.C. § 841(a)(1). Levine pled not guilty and proceeded to

trial. A jury found Levine not guilty as to Count 1 but guilty as to Count 2. The

jury did not make a specific finding as to the drug amount for Count 2.

       Applying the United States Sentencing Guidelines, the probation office

attributed “a total of 109 grams” of crack cocaine to Levine. Based on that

amount, the presentence investigation report (“PSI”) calculated Levine’s base


1
  In 2018, Congress enacted the First Step Act, which granted district courts the discretion to
retroactively reduce statutory penalties for “covered offenses” enacted under the Fair Sentencing
Act of 2010. See First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222
(2018); United States v. Jones, 

, 1297–98 (11th Cir. 2020). The Fair Sentencing
Act amended 21 U.S.C. § 841(b)(1) to reduce the sentencing disparity between crack and powder
cocaine, changing the quantity of crack cocaine necessary to trigger the 5-year and 10-year
mandatory minimum sentences. See Dorsey v. United States, 

, 268–70, 

, 2328–29 (2012).
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offense level to be 32 under USSG § 2D1.1(c)(4). The probation office then

applied enhancements to raise Levine’s offense level to 37 under USSG

§ 4B1.1(a), because he qualified as a career offender. Next, the probation office

placed Levine in criminal history category VI based on 22 criminal history points

and his status as a career offender. Finally, the probation office determined that,

based on a total offense level of 37 and a criminal history category of VI, his

guideline range was 360 months’ imprisonment to life imprisonment.

      Levine objected to the PSI on various grounds, including that the PSI

attributed 109 grams of crack cocaine to him. At sentencing, the district court

attributed 97.2 grams of crack cocaine to Levine, setting aside the remaining

approximately 11.8 grams. The district court overruled Levine’s remaining

objections and adopted the guideline range in the PSI. The district court

summarized Levine’s criminal history and denied his motion for a downward

departure, sentencing him to life imprisonment followed by a five-year term of

supervised release. In imposing the sentence, the district court found that Levine’s

criminal history did not overrepresent the seriousness of his criminal offenses.

Levine did not object to the sentence the district court imposed, but he did preserve

the objections he previously raised.




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         Following the entry of judgment, Levine appealed, but this Court affirmed

his conviction and sentence. United States v. Levin[e], 49 F. App’x 287 (11th Cir.

2002) (Table) (unpublished).

         In 2016, President Obama commuted Levine’s sentence to a term of 327

months, “leaving intact and in effect the five-year term of supervised release.”

Subsequently, the district court entered an amended judgment reflecting Levine’s

new sentence of 327 months’ imprisonment.

         In June 2019, Levine filed a motion to reduce his sentence under the First

Step Act. He argued that he was eligible for relief, and requested that the district

court impose a sentence of 262 months’ imprisonment, followed by four years of

supervised release.2 Levine clarified he was not asking for a downward variance

but to have his sentence reduced to the bottom of his newly-applicable guidelines

range.

         The district court denied Levine’s motion to reduce his sentence without

requesting a response from the government. The district court recognized that

Levine’s guideline range would be 262 to 327 months’ imprisonment because of

his status as a career offender. It also noted that the statutory maximum would be




2
  Levine argued he had demonstrated an “intense desire to turn his life around, educate himself,
rehabilitate himself, become a better parent, and become a productive member of society.” He
listed the coursework he had completed while incarcerated, and pointed to the fact that he had
“not had even one disciplinary infraction for the past 18 years.”
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40 years’ imprisonment. The district court then found that “[n]o relief is due since

Levine is serving a high end of the guidelines sentence of 327 months,” and noted

it “previously sentenced [Levine] at the high end of the guidelines.” Levine timely

appealed.

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

abuses its discretion if it “applies an incorrect legal standard, applies the law

in an unreasonable or incorrect manner, follows improper procedures in making a

determination, or makes findings of fact that are clearly erroneous.” Diveroli v.

United States, 

, 1262 (11th Cir. 2015) (quotation marks omitted).

                                             III.
       First, it should be noted that the parties agree—correctly—that Levine was

eligible for a sentence reduction under the First Step Act. 3 Thus, Levine was

eligible for a reduction under the First Step Act, and the district court understood it




3
  Levine has a “covered offense” because he was sentenced under § 841(b)(1)(A) for distributing
50 or more grams of crack cocaine and the Fair Sentencing Act modified the statutory penalties
for that offense. 

–03.
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had the discretion to reduce his sentence under the First Step Act. See R. Doc. 103

at 3.

        Rather than his eligibility, Levine’s appeal centers around whether the

district court abused its discretion under the First Step Act by failing to consider

the § 3553(a) factors or explain how Levine’s sentence was sufficient but not

granter than necessary to comply with the purposes of sentencing. Specifically, he

says that the record must “affirmatively show the district court actually considered

the factors listed by Congress, and adequately explained its chosen sentence.” And

in failing to meet this requirement, Levine argues the district court “did not even

recite in rote fashion” that it considered any—much less all—§ 3553(a) factors in

denying relief. And, because Levine says the district court gave no explanation for

choosing a life sentence at his initial sentencing, it “reflexively adopt[ed]” the

same sentence in deciding his First Step Act motion. Finally, Levine claims the

district court abused its discretion by failing to explain why, “after [he] had served

18 straight years in prison without a single disciplinary incident, . . . a sentence at

the bottom of the guideline range . . . would not have been sufficient to satisfy the

goals of sentencing.”

        Although district courts are required to consider the § 3553(a) factors at the

initial sentencing, see Chavez-Meza v. United States, 585 U.S. ___, 

, 1963 (2018), this Court has not required them to consider those factors when


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determining whether to reduce a sentence under the First Step Act. See 

(“In exercising their discretion, [district courts] may consider all the

relevant factors, including the statutory sentencing factors, 18 U.S.C. § 3553(a).”

(emphasis added)). And, even where consideration of the § 3553(a) factors is

mandatory, like at the initial sentencing stage, it is not necessary for the district

court to state on the record that it has explicitly considered each of the § 3553(a)

factors or to discuss each of the § 3553(a) factors. United States v. Kuhlman, 

, 1326 (11th Cir. 2013).

      In determining whether to further reduce Levine’s commuted sentence, it is

evident from the record that the district court considered the § 3553(a) factors. See

United States v. Dorman, 

, 944 (11th Cir. 2007) (affirming appellant’s

sentence because even though the district court did not discuss each of the

sentencing factors, the record showed that it considered several of them). The

district court recognized that Levine was previously sentenced at the high end of

the guideline range. The previous sentence was based in part upon Levine’s

criminal history and career offender status, which had not changed in the years

since Levine was sentenced. The district court also considered the “post-sentence

rehabilitation evidence” Levine presented, “along with the proffered disparate

sentences imposed by other judges.” But the district court, like at the initial

sentencing, “again exercise[d] discretion” not to reduce Levine’s sentence. Rather,


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it found that a 327-month sentence was warranted, even if it was on the “high end”

of the guideline range. Under this Court’s precedent, the district court did not

abuse its discretion when it implicitly considered the § 3553(a) factors without

“affirmatively show[ing]” that it considered all of them.

      Neither did the district court abuse its discretion by failing to give an

adequate explanation of the reasons it chose to deny a reduction in Levine’s

sentence. In Rita v. United States, 

, 

(2007), the

Supreme Court “upheld the adequacy of a ‘sentencing judge’s statement of reasons

[which] was brief but legally sufficient.’” United States v. Irey, 

,

1194–95 (11th Cir. 2010) (en banc) (quoting 

, 127 S. Ct. at

2469). This Court has also recognized that “[n]o member of this Court has ever

before indicated that a sentencing judge is required to articulate his findings and

reasoning with great detail or in any detail for that matter.”

see also

United States v. Rosales-Bruno, 

, 1265 (11th Cir. 2015) (holding

that explicit comparison of details “far exceeds the level of explanation we require

of district courts exercising their sentencing discretion”). Thus our precedent

imposes no requirement on the district court to explain why, “after [Levine] had

served 18 straight years in prison without a single disciplinary incident, . . . a

sentence at the bottom of the guideline range . . . would not have been sufficient to

satisfy the goals of sentencing.”


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AFFIRMED.




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