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                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-15029
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 8:08-cr-00534-EAK-TGW-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CALEB MICHAEL CHARLES,
a.k.a. Cain,

                                                            Defendant-Appellant.

                      ________________________

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

                            (September 15, 2020)

Before NEWSOM, BRANCH and MARCUS, Circuit Judges.

PER CURIAM:
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      Caleb Michael Charles appeals the district court’s denial of his motion for a

reduction in sentence under Section 404 of the First Step Act of 2018, Pub. L. 115

391, 132 Stat. 5194 (“First Step Act”). He argues that the district court abused its

discretion by declining to reduce his sentence after finding that he was convicted of

a covered offense and by denying his request for a hearing on his motion. After

careful review, we affirm.

      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).

While district courts generally 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 circumstances. 

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

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

A

district court abuses its discretion by using an incorrect legal standard. Diveroli v.

United States, 

, 1262 (11th Cir. 2015).

      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 of 2010, Pub. L. No. 111-

220, 124 Stat. 2372 (“Fair Sentencing Act”); see Dorsey v. United States, 

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260, 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 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 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 

. We began by holding 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).

We instructed that when the district

court is assessing whether an offense triggered the penalties in § 841(b)(1)(A)(iii) or

(B)(iii) and, therefore, was a “covered offense,” the court must consult the record,

including the movant’s charging document, the jury verdict or guilty plea, the

sentencing record, and the final judgment.

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.

However, we recognized that a judge’s actual drug quantity finding remains

relevant to the extent the judge’s finding triggered a higher statutory penalty.

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

were sentenced for covered offenses because they were sentenced for offenses with

penalties 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, we held that when § 404(b) of the First Step

Act provides that any reduction must be “as if sections 2 and 3 of the Fair Sentencing


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Act . . . were in effect at the time the covered offense was committed,” it imposes

two limitations on the district court’s authority.

Act § 404(b);

emphasis added). One, 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.

we held that if a

movant’s sentence necessarily would have remained the same had the Fair

Sentencing Act been in effect -- that is, if his sentence was equal to the mandatory

statutory 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 benefited him, and the First Step Act does not authorize the district court to

reduce his sentence.

      Using this framework, we affirmed the denials of two of the movants’ motions

in Jones, and vacated and remanded as to the others 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 a district court to conclude that a movant was ineligible based on (1) a

higher drug quantity finding that was made for sentencing -- not statutory --


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

the bottom of the guideline range.

Because it was ambiguous whether

the district courts denied the motions for one of those improper reasons, we vacated

and remanded for further consideration.

that, while a district court may have the authority to reduce

a sentence under § 404 of the First Step Act, it is not required to do so.

We held that a district court has wide latitude to decide 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.

      In a case following Jones, we addressed whether a district court had erred by

ruling on a motion filed under the First Step Act without first holding a hearing on

the motion. See United States v. Denson, 

, 1082 (11th Cir. 2020). We

held that the statute does not require the district court to hold a hearing with the

defendant present, noting that “the First Step Act does not mention, let alone

mandate, a hearing.”

(quoting United States v. Williams, 

,

843 (8th Cir. 2019)). We also rejected the movant’s argument that he had a due

process right to be present at this kind of hearing.

We emphasized

that the First Step Act left the choice of whether to resentence and to what extent to

the district court’s sound discretion.

Finally, we concluded that under

the two-part test in United States v. Brown, 

(11th Cir. 2018), a


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sentencing modification under the First Step Act was not a critical stage in the

proceedings that required a movant’s presence at a hearing.

      Here, the record shows, and the parties agree, that the district court correctly

found that Charles was convicted of a covered offense and eligible for relief under

the First Step Act. Contrary to Charles’s claims, however, the record also shows

that the district court recognized it had the authority to reduce Charles’s sentence,

but exercised its discretion not to do so. The district court began by acknowledging

both parties’ arguments about a sentence reduction, expressly noting Charles’s

disciplinary and educational records in prison. The court added that, although the

First Step Act and Fair Sentencing Act had altered the statutory penalties for Count

Two, Charles’s guideline range had not changed. The court then clearly said that it

“would have imposed [the same sentence] regardless of whether the [Fair Sentencing

Act] had been in effect” because Charles’s low-end guideline range sentence was

justified by the factors it considered at his original sentencing. Thus, the record

reflects that the court considered the 18 U.S.C. § 3553(a) factors and decided not to

exercise its discretion to reduce his sentence. Moreover, the court actually reduced

Charles’s term of supervised release based on the change in statutory penalties,

further demonstrating that it recognized its authority to modify Charles’s sentence.

In short, the record in no way suggests that the district court held a mistaken belief

that it could not reduce Charles’s sentence below the guideline range.


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      As for Charles’s argument that the district court was required to hold a hearing

before it ruled on his motion, we disagree. Our recent decision in Denson squarely

forecloses Charles’s arguments that a sentence modification under the First Step Act

is a critical stage in the proceeding and that the lack of a hearing violated his due

process rights. See 

. Accordingly, we affirm.

      AFFIRMED.




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