USCA11 Case: 20-11039    Date Filed: 10/07/2020   Page: 1 of 4



                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 20-11039
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:01-cr-08126-UU-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

                                  versus

MICHAEL TYRONE MCCULLON,

                                              Defendant - Appellant.

                       ________________________

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

                             (October 7, 2020)

Before MARTIN, JILL PRYOR, and BRASHER, Circuit Judges.

PER CURIAM:
          USCA11 Case: 20-11039       Date Filed: 10/07/2020   Page: 2 of 4



      Michael McCullon appeals the district court’s denial of his motion to modify

his sentence pursuant to Section 404 of the First Step Act of 2018, Pub. L. No.

115-391, 132 Stat. 5194 (“First Step Act”). Because McCullon is not eligible for

First Step Act relief under United States v. Jones, 

(11th Cir. 2020),

we affirm.

                                          I.

       In 2001 McCullon was indicted on a number of charges including

possession with intent to distribute five grams or more of crack cocaine in violation

of 21 U.S.C. § 841. In 2002 a jury convicted him of the lesser-included offense of

simple possession of crack cocaine, finding that he possessed only 0.15 grams.

Under the law in effect at the time, and based on his criminal history, McCullon

was subject to a sentence of 90 days to 3-years imprisonment. See 21 U.S.C.A. §

844(a) (2000). Today, that same sentence applies. See 21 U.S.C. § 844(a).

      McCullon was sentenced to 36-months imprisonment to be followed by one

year of supervised release for that offense. This was to be served concurrent to his

262-month sentence for possession of a firearm by a prohibited person under 18

U.S.C. § 922(g). In January 2020 McCullon moved for a modification of his

sentence pursuant to Section 404 of the First Step Act. The district court denied

the motion, finding that even if McCullon were eligible for First Step Act relief, he




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was not entitled to resentencing because of his criminal history and because the

statutory penalties for his offense had not changed. McCullon timely appealed.

                                           II.

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

imprisonment. United States v. Phillips, 

, 1194 n.9 (11th Cir. 2010).

McCullon argues the district court has authority to modify his term of

imprisonment pursuant to the First Step Act and abused its discretion in denying

his motion for a modification. McCullon maintains that he is eligible for First Step

Act relief either because the Fair Sentencing Act modified the penalties for the

crime with which he was charged (possession with intent to distribute 5 grams or

more of crack cocaine) or because it modified some of the statutory penalties that

apply to the provision McCullon violated. McCullon concedes that the statutory

penalty he was subject to was not changed by the Fair Sentencing Act.

      McCullon’s arguments in support of his eligibility for First Step Act relief

are foreclosed by Jones. In that case, a panel of this Court held that to be eligible

for sentence modification under Section 404 of the First Step Act, a defendant

must have been convicted of an offense that “triggered a statutory penalty that has

since been modified by the Fair Sentencing Act.” 

. The

fact that the charged offense would have triggered penalties changed by the Fair

Sentencing Act is irrelevant if the defendant’s ultimate statutory penalty was not


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modified by the Fair Sentencing Act.1 See

Because McCullon’s

offense triggered a statutory penalty that was not changed by the Fair Sentencing

Act, he is ineligible for First Step Act relief.

       AFFIRMED.




       1
         McCullon also argues that because Jones stated that the district court cannot look to the
actual quantity of crack cocaine involved in the violation, the district court here could not have
considered the fact that McCullon only possessed 0.15 grams. But that statement was made in
the context of Jones’s holding that the only relevant information is whether the amount involved
triggered one of the penalties changed by the Fair Sentencing Act. 

.
Because McCullon was found guilty of possessing fewer than 5 grams of crack cocaine, his
offense did not trigger one of those penalties.
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