Case: 19-15016    Date Filed: 09/08/2020   Page: 1 of 8



                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-15016
                            Non-Argument Calendar
                          ________________________

                 D.C. Docket No. 3:09-cr-00133-MMH-MCR-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

SYLVESTER GILLON,

                                                             Defendant-Appellant.

                          ________________________

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

                               (September 8, 2020)

Before WILLIAM PRYOR, Chief Judge, JORDAN and NEWSOM, Circuit
Judges.

PER CURIAM:

      Sylvester Gillon, a federal prisoner serving a sentence of 190 months of

imprisonment, see Fed. R. Crim. P. 35(b), for distributing 50 grams or more of
               Case: 19-15016      Date Filed: 09/08/2020    Page: 2 of 8



crack cocaine, 21 U.S.C. § 841(a)(1), appeals the partial denial of his motion to

reduce his sentence based on the First Step Act of 2018, Pub. L. No. 115-391,

§ 404(b), 132 Stat. 5194, 5222. The district court reduced Gillon’s term of

supervised release, but otherwise denied his request to reduce his prison sentence.

Gillon argues that the district court incorrectly concluded that he was ineligible for

a further reduction. Gillon also argues that the district court violated his right to

due process by denying his motion without holding a hearing in his presence, but

that argument is foreclosed by precedent, United States v. Denson, 

(11th Cir. 2020). Because we cannot discern whether the district court understood

its authority to reduce Gillon’s sentence, see United States v. Jones, 

(11th Cir. 2020), we vacate the order denying Gillon’s motion and remand for

further proceedings.

      In August 2009, Gillon pleaded guilty to distributing crack cocaine in

exchange for the dismissal of two additional drug charges. Gillon admitted that,

while on supervised release for another drug crime, he sold a confidential

informant 104.8 grams of crack cocaine. Because Gillon was a career offender, his

presentence investigation report increased his base offense level from 30, United

States Sentencing Guidelines Manual § 2D1.1 & cmt. n.10(D)(i) (Nov. 2008), to

level 37

and increased his criminal history score from V to VI, see

applied a three-level reduction for Gillon’s acceptance of


                                            2
               Case: 19-15016     Date Filed: 09/08/2020   Page: 3 of 8



responsibility

resulted in an adjusted offense level of 34 and an

advisory guideline range of 262 to 327 months of imprisonment. Gillon’s

presentence report also stated that he had a statutory sentencing range of 20 years

to life imprisonment, 21 U.S.C. § 841(b)(1)(A), and a statutory mandatory-

minimum term of supervised release of ten years, id.; U.S.S.G. § 5D1.2(b). At

sentencing, the district court determined that Gillon’s sentencing range was

“unnecessarily high” because he was a career offender and sentenced him to 20

years of imprisonment and ten years of supervised release.

      In 2014, the district court granted a motion to reduce Gillon’s sentence. Fed.

R. Crim. P. 35(b). The district court reduced Gillon’s offense level by two levels,

which resulted in a revised advisory guideline range of 210 to 262 months of

imprisonment, and varied 20 months below the low end of that range to sentence

him to 190 months of imprisonment. See 18 U.S.C. § 3553(a), (e). The district

court mentioned that, had the Fair Sentencing Act of 2010, Pub. L. No. 111-220,

124 Stat. 2372, been in effect when it sentenced Gillon, he would have faced the

same advisory guideline range and a statutory mandatory-minimum sentence of ten

years of imprisonment.

      In December 2018, Gillon moved pro se to reduce his prison sentence and

his term of supervised release based on the First Step Act. See Pub. L. No. 115-

391, § 404(b). A probation officer advised the district court that it had discretion


                                           3
               Case: 19-15016     Date Filed: 09/08/2020   Page: 4 of 8



under the First Step Act, which made retroactive the statutory penalties for covered

offenses under the Fair Sentencing Act, to reduce Gillon’s term of supervised

release from ten to eight years. The probation officer also reported that the

retroactive application of the Fair Sentencing Act affected Gillon’s sentence and

that, because there was no change in Gillon’s advisory guideline range and he

previously had his sentence reduced after consideration of the purposes for

sentencing, 18 U.S.C. § 3553(a), “a comparable downward departure and variance

would result in the same term of imprisonment.”

      The government did not dispute that Gillon was eligible for relief under the

First Step Act. Gillon, through appointed counsel, amended his motion and

requested that the district court reduce his term of supervised release from ten

years to eight years. The government did not oppose that request. Gillon also

requested that the district court further reduce his prison sentence to time served or,

in the alternative, that it hold a hearing during which he could address what

sentence was appropriate in the light of his post-sentencing rehabilitation and other

relevant factors. But the government responded that the district court should

exercise its discretion to deny Gillon a further reduction of his prison sentence. The

government argued that the First Step Act did not change Gillon’s advisory

guideline range or any of the factors considered when the district court reduced his

sentence to 190 months of imprisonment and that his sentence was not based on


                                          4
               Case: 19-15016     Date Filed: 09/08/2020    Page: 5 of 8



the statutory mandatory-minimum penalty reduced by the Fair Sentencing Act, so

the reduction did not establish that his sentence was inappropriate.

      The district court granted Gillon’s motion in part. The district court granted,

as unopposed, Gillon’s request to reduce his term of supervised release from ten

years to eight years. But the district court denied Gillon’s request to further reduce

his prison sentence on the grounds that “the United States argues” and the

probation officer “conclu[des]” that Gillon’s “guidelines are not affected by

application of the reduced penalties set forth in the Fair Sentencing Act and . . .

[his] term of imprisonment is already below the applicable guidelines range.”

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

movant’s sentence under the First Step Act. 

. We review

the denial of an eligible movant’s request for relief for abuse of discretion.

for a reduction of his prison sentence. 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 section 841(b)(1)(A)(iii) or (B)(iii), 

, and “if section two

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

Gillon admitted that he sold 104.8 grams of crack cocaine, which triggered the

statutory penalties in section 841(b)(1)(A) and subjected him to a statutory


                                           5
               Case: 19-15016     Date Filed: 09/08/2020     Page: 6 of 8



mandatory-minimum sentence of 20 years of imprisonment. Later, section 2 of the

Fair Sentencing Act increased the quantity of crack cocaine necessary to trigger the

statutory penalty from 50 grams to 280 grams and reduced the mandatory-

minimum sentence from 20 years to 10 years of imprisonment. Fair Sentencing Act

§ 2(a)(1); 21 U.S.C. § 841(b)(1)(A)(iii); see 

. Gillon’s

conviction for distributing 50 grams or more of crack cocaine is a covered offense.

      The First Step Act permitted the district court to reduce Gillon’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 § 404(b)). Because Gillon’s sentence of 190

months of imprisonment exceeded the statutory mandatory-minimum sentence of

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

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

      “A district court abuses its discretion if it applies an incorrect legal standard,

follows improper procedures in making the determination, or makes findings of

fact that are clearly erroneous.” United States v. Khan, 

, 1293 (11th

Cir. 2015) (internal quotation marks omitted). A district court “may,” First Step

Act § 404(b), but is not “require[d] . . . to reduce [the] sentence,”

an

eligible movant. “In exercising [its] discretion, [the district court] may consider all




                                           6
               Case: 19-15016    Date Filed: 09/08/2020    Page: 7 of 8



the relevant factors, including the statutory sentencing factors, 18 U.S.C.

§ 3553(a).” 

.

      We cannot discern from the order the district court entered why it denied

Gillon a further reduction of his prison sentence. The government and the

probation officer stated that Gillon did not deserve a further reduction because the

district court previously had determined that the statutory sentencing factors

required a sentence of 190 months of imprisonment, see 18 U.S.C. § 3553, and the

First Step Act did not change Gillon’s advisory guideline range or the application

of the sentencing factors. But the order reads as though the district court might

have thought it lacked the authority to reduce Gillon’s sentence. See 

. The district court stated that it was denying Gillon a further reduction

because the Fair Sentencing Act did not affect his guideline range and his sentence

was already below the advisory guideline 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 

. To be

sure, the district court might have correctly understood and exercised its discretion

to deny Gillon’s motion, but it might have incorrectly concluded that it lacked the

authority to reduce Gillon’s sentence. See

is ambiguous, we

vacate the order denying Gillon’s motion and remand for further consideration.


                                          7
              Case: 19-15016     Date Filed: 09/08/2020   Page: 8 of 8



      We AFFIRM the denial of Gillon’s motion for a hearing. But we VACATE

the order that denied Gillon’s motion to further reduce his prison sentence and

REMAND for further proceedings.




                                         8