Case: 20-10382     Document: 00515584778         Page: 1     Date Filed: 09/30/2020




              United States Court of Appeals
                   for the Fifth Circuit                           United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                  No. 20-10382                    September 30, 2020
                                Summary Calendar                     Lyle W. Cayce
                                                                          Clerk

   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Terry Lynn Hargers,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 1:07-CR-61-1


   Before Higginbotham, Jones, and Costa, Circuit Judges.
   Per Curiam:*
          Terry Lynn Hargers appeals the district court’s denial of his motion
   under the First Step Act of 2018 to reduce his sentence of 24 months in
   prison, imposed upon the revocation of his term of supervised release
   following his 2007 guilty-plea conviction of distributing and possessing with


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-10382      Document: 00515584778           Page: 2     Date Filed: 09/30/2020




                                     No. 20-10382


   intent to distribute cocaine base. See First Step Act of 2018, Pub. L. No. 115-
   391, 132 Stat. 5194; 21 U.S.C. § 841(a)(1) & (b)(1)(C). Hargers contends that
   the district court erred in finding him ineligible for relief under the First Step
   Act.
          The Government, relying on this court’s decision in United States v.
   Jackson, 

, 319 (5th Cir. 2019), cert. denied, 

   (U.S. Apr. 20, 2020) (No. 19-8036), has filed a motion for summary
   affirmance or, in the alternative, an extension of time in which to file a brief.
   Hargers, relying on multiple albeit out-of-circuit cases, does not concede that
   his issue is foreclosed. We therefore deny the Government’s motion for
   summary affirmance. See Groendyke Transp., Inc. v. Davis, 

,
   1162 (5th Cir. 1969). However, because Hargers is not entitled to the relief
   he seeks, as discussed below, we dispense with further briefing and affirm.
          The record establishes that Hargers was convicted of an offense under
   § 841(b)(1)(C), which applies to any quantity of cocaine base without a
   triggering minimum amount. The Fair Sentencing Act of 2010 raised the
   triggering minimum amounts of cocaine base in § 841(b)(1)(A)(iii) and
   (B)(iii) from 50 grams and 5 grams to 280 grams and 28 grams, respectively,
   but did not modify § 841(b)(1)(C) which required no minimum quantity of
   cocaine base to apply. Fair Sentencing Act of 2010, Pub. L. No. 111-220,
   sec. 2(a), 124 Stat. 2372; 

. Therefore, even if the
   First Step Act applies to revocation sentences, Hargers was ineligible for a
   sentence reduction because the Fair Sentencing Act did not modify the
   penalty for his offense of conviction. See First Step Act of 2018, sec. 404(a),
   132 Stat. 5194, 5222; Fair Sentencing Act of 2010, sec. 2(a), 124 Stat. 2372;
   

.
          The Government’s motion for summary affirmance or an extension of
   time is DENIED, and the judgment of the district court is AFFIRMED.
   See United States v. Chacon, 

, 220 (5th Cir. 2014).



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