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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12390
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:09-cr-20264-JLK-6



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

FRANTZ STERLIN,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 26, 2020)

Before BRANCH, BRASHER and DUBINA, Circuit Judges.

PER CURIAM:
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      Frantz Sterlin, a federal prisoner, appeals the district court’s order denying

his motion for reduction of his 192-month total sentence under the First Step Act

of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018) (“First Step

Act”), after the court refused to exercise its discretion to reduce his total sentence,

even though it determined that he was eligible for relief under the retroactive

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

(2010) (“Fair Sentencing Act”). On appeal, Sterlin argues that the denial of his

motion was both procedurally and substantively unreasonable because the district

court failed to consider adequately all the factors listed under 18 U.S.C. § 3553(a).

                                            I.

      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 for abuse of discretion the [district court’s] denial of an

eligible movant’s request for a reduced sentence under the First Step Act.”

abuses its discretion if it applies an incorrect legal standard.”

Diveroli v. United States, 

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

omitted). District courts lack the inherent authority to modify a term of

imprisonment but may do so to the extent that a statute expressly permits. 18

U.S.C. § 3582(c)(1)(B). “[T]he First Step Act expressly permits district courts to

reduce a previously imposed term of imprisonment.” 

.


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                                         II.

      The 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. Fair Sentencing Act; see Dorsey v. United States, 

,

268-70, 

, 2328–29 (2012) (detailing the history that led to the

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 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). The Fair Sentencing Act did not expressly make any

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

      The First Step Act made retroactive the statutory penalties for covered

offenses enacted under the Fair Sentencing Act. See First Step Act § 404. Under


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§ 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.”

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.”

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).

1300. Interpreting the First Step

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.”

1298; 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


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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 movant has a covered offense if he was sentenced for an offense that

triggered one of those statutory penalties.

district courts must 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.

1300-01. 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.

1301. 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 cocaine, therefore triggering § 841(b)(1)(A)(iii), or between 5 and

50 grams, therefore triggering § 841(b)(1)(B)(iii).

that any actual drug amount 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.

1301-02. However, contrary

to the movants’ arguments, we opined that a district court’s actual drug-quantity

finding remains relevant to the extent that the district court’s finding triggered a


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higher statutory penalty.

1302. Thus, a movant sentenced prior to Apprendi

v. New Jersey, 

, 

(2000), in which the Supreme Court

held that facts, such as 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.

1302-03. Specifically, similar to the situation in the instant case, we determined

that one movant, Alfonso Allen—who was charged in 2006 with 50 grams or more

of crack cocaine, found by a jury to be responsible for that drug amount, and

attributed with between 420 and 784 grams of crack cocaine per week at

sentencing—was convicted of a covered offense, noting that the higher

drug-quantity finding at sentencing did not trigger the statutory penalty for his

offense.

that a movant’s satisfaction of the “covered offense”

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

reduce his sentence.

1303. Specifically, the “as if” qualifier in Section


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

(alteration in original); see 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. 

. Second, in determining 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 district courts 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.

1303.

      Applying this “as-if” framework, we vacated and remanded the denials of

two of the movants’ motions because the district courts had authority to reduce


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their sentences under the First Step Act, but it was unclear whether the courts had

recognized that authority.

1304-05. Specifically, as to movant Allen, we

noted that the district court denied the motion because Allen’s guideline range

remained the same, based on the drug-quantity finding made at sentencing, and his

sentence was already at the low-end of that guideline range, such that the court

may have incorrectly concluded that he was not eligible for a further reduction.

1305. We held that it was error for the district courts to conclude that a movant

was ineligible based on (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.

that, although a district court may have the authority to

reduce a sentence under Section 404 of the First Step Act, it is not required to do

so.

1304. We held that a district court has wide latitude to determine

whether and how to exercise its discretion, and that it may consider the 18 U.S.C.

§ 3553(a) factors and a previous drug-quantity finding made for the purposes of

relevant conduct.

1301, 1304.

      Although we stated in Jones that a district court may consider the § 3553(a)

factors when assessing an eligible movant’s request for a sentence reduction under


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Section 404(b), we have not addressed in a published decision whether a district

court is required to do so. In the § 3582(c)(2) context, a district court is required to

consider the § 3553(a) factors in assessing a qualifying movant’s request for a

sentence reduction, but this requirement is set forth explicitly in U.S.S.G.

§ 1B1.10. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10, comment. (n.1(B)(i)).

Section 404 of the First Step Act, on the other hand, does not expressly require the

district court to consider the § 3553(a) factors. In addition, we have held 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 sections 2 and 3 of the Fair Sentencing Act. United States v. Denson, 

, 1082, 1086–88 (11th Cir. 2020).

      In situations where consideration of the § 3553(a) factors is mandatory, 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 addition, a

sentence may be affirmed so long as the record indicates that the district court

considered several 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). Moreover, the weight given to any of the § 3553(a) factors is


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committed to the sound discretion of the district court. United States v. Croteau,

, 1309 (11th Cir. 2016). Even so, “[a] district court abuses its

discretion when it (1) fails to afford consideration to relevant factors that were due

significant weight, (2) gives significant weight to an improper or irrelevant factor,

or (3) commits a clear error of judgment in considering the proper factors.” United

States v. Irey, 

, 1189 (11th Cir. 2010) (en banc) (quoting United

States v. Campo, 

, 1174 (11th Cir. 2006) (en banc)). Furthermore, a

district court’s unjustified reliance on any one § 3553(a) factor to the detriment of

all the others may be a symptom of an unreasonable sentence. United States v.

Pugh, 

, 1191 (11th Cir. 2008).

      Under § 3553(a), a district court’s sentence must be sufficient, but not

greater than necessary, to achieve the goals of sentencing, which are: reflecting the

seriousness of the offense, promoting respect for the law, providing just

punishment, deterring future criminal conduct, protecting the public, and providing

the defendant with any needed training or treatment. 18 U.S.C. § 3553(a)(2).

Section 3553(a) also requires district courts to consider the nature and

circumstances of the offense, the defendant’s history and characteristics, the kinds

of sentences available, the Sentencing Guidelines, any pertinent policy statement,

the need to avoid disparate sentences for defendants with similar records, and the

need to provide restitution to any victims.

§ 3553(a)(1), (3)-(7). While we


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do not automatically presume a sentence within the guideline range is reasonable,

we ordinarily expect such a sentence to be reasonable. United States v. Hunt, 

, 746 (11th Cir. 2008). A sentence that is well below the statutory

maximum penalty is another indicator of a reasonable sentence. See United States

v. Gonzalez, 

, 1324 (11th Cir. 2008).

                                          III.

      Here, although Sterlin was eligible for a sentence reduction under the First

Step Act, which the district court correctly recognized, we conclude from the

record that the district court did not abuse its discretion in denying Sterlin’s

motion. Based on the record, the district court did consider several factors in

denying Sterlin’s sentence reduction, whether it was required to or not. The

district court noted that Sterlin’s co-defendants received lower sentences than he

did and that it had considered this previously in sentencing Sterlin. The district

court also noted that Sterlin’s guideline range would be changed by the Fair

Sentencing Act and the First Step Act, which indicates that it considered the kinds

of sentences available and the Sentencing Guidelines. Moreover, the record

indicates that the district court recognized that Sterlin’s advisory guideline range

would have been 262 to 327 months’ imprisonment had the Fair Sentencing Act

been in effect at the time of his sentencing and that the 192-month sentence that it

imposed was still well below that range. Accordingly, for the aforementioned


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reasons, we affirm the district court’s order denying Sterlin’s motion for reduction

of his 192-month total sentence.

      AFFIRMED.




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