USCA11 Case: 22-10027 Document: 20-1 Date Filed: 12/05/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10027
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY WHITE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:88-cr-00028-JES-12
____________________
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2 Opinion of the Court 22-10027
Before NEWSOM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Larry White appeals the district court’s denial of his motion
for a sentence reduction, pursuant to the First Step Act of 2018,
Pub. L. No. 115-391, § 404(b),
132 Stat. 5194, 5222 (2018). He as-
serts, in essence, that the court abused its discretion by relying on
his record of 100-plus prison infractions—most involving sexual
misconduct—rather than an intervening change in law that would
have made his 45-year sentence for possessing with intent to dis-
tribute 50 grams or more of crack cocaine lower if he were sen-
tenced today.
We review a district court’s denial of an eligible movant’s
request for a reduced sentence under the First Step Act for abuse
of discretion. United States v. Stevens,
997 F.3d 1307, 1312 (11th
Cir. 2021). A district court abuses its discretion when it applies an
incorrect legal standard or makes a clear error of judgment.
Id.
The Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124
Stat. 2372, as amended,
21 U.S.C. § 841(b)(1), was passed in an ef-
fort to reduce the sentencing disparities between crack and powder
cocaine. See Dorsey v. United States,
567 U.S. 260, 268-69 (2012)
(detailing the history that led to the enactment of the Fair Sentenc-
ing Act, including the Sentencing Commission’s criticisms that the
disparity between crack cocaine and powder cocaine offenses was
disproportional and reflected race-based differences). For example,
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22-10027 Opinion of the Court 3
a defendant convicted of possessing 50 grams of crack cocaine with
intent to distribute before the Fair Sentencing Act would have been
subject to 10 years’ to life imprisonment, see
21 U.S.C. § 841(a),
(b)(1)(A)(iii) (2009), but would have been subject to 5 to 40 years’
imprisonment if sentenced after the Fair Sentencing Act, see
21
U.S.C. § 841(a), (b)(1)(B)(iii) (2010). These amendments were not
made retroactive to defendants who were sentenced before the en-
actment of the Fair Sentencing Act. United States v. Berry,
701 F.3d
374, 377 (11th Cir. 2012).
In 2018, Congress enacted the First Step Act, which, for
“covered offenses,” made retroactive the statutory penalties en-
acted under the Fair Sentencing Act. See First Step Act § 404. Un-
der § 404(b) of the First Step Act, a court that imposed a sentence
for a covered offense may impose a reduced sentence as if §§ 2 and
3 of the Fair Sentencing Act were in effect at the time the covered
offense was committed. Id. § 404(b).
To be eligible for a sentence reduction, a movant must have
a “covered offense,” meaning he must have been sentenced for a
crack-cocaine offense that triggered the higher penalties in
§ 841(b)(1)(A)(iii) or (B)(iii). United States v. Jones,
962 F.3d 1290,
1298 (11th Cir. 2020). Further, a defendant is ineligible if he was
sentenced to the lowest statutory penalty that would also be avail-
able to him under the Fair Sentencing Act.
Id. at 1303.
While the First Step Act expressly permits a district court to
reduce an eligible defendant’s sentence for a covered offense, the
district court is not required to do so. Stevens, 997 F.3d at 1314. A
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4 Opinion of the Court 22-10027
district court has wide latitude to determine whether and how to
exercise its discretion in this context. Id. In exercising its discre-
tion, district courts may consider all relevant factors, including the
18 U.S.C. § 3553(a) factors, post-offense conduct and post-incarcer-
ation rehabilitation, the probation officer’s submissions, and other
relevant facts and circumstances.
Id. at 1317-18. One of the
§ 3553(a) factors that a court may consider is the defendant’s his-
tory and characteristics.
18 U.S.C. § 3553(a)(1).
Recently, the Supreme Court decided Concepcion v. United
States, which held that the First Step Act allows district courts to
consider intervening changes of law or fact in exercising their dis-
cretion to reduce a sentence.
142 S. Ct. 2389, 2404 (2022). The
Court stated that a district court has discretion to reject a defend-
ant’s arguments about an intervening change in law, so long as it
articulates a brief statement of reasons for its ruling on a defend-
ant’s motion. See
id. at 2404-05.
Here, the district court did not abuse its discretion. While
there is no dispute that White was eligible for a sentence reduction,
the court was within its discretion to weigh White’s prison infrac-
tions and his personal history and characteristics more heavily than
the intervening change in law. The court was not required to defer
to the intervening change in law, and the court’s statement that it
had considered all the materials and found that White was eligible
for a sentence reduction—i.e., that he was eligible because there
was an intervening change in law—was a sufficient consideration
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22-10027 Opinion of the Court 5
of his argument that the law had changed. See Concepcion, 142 S.
Ct. at 2404. Accordingly, we affirm.
AFFIRMED.
