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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12882
Non-Argument Calendar
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D.C. Docket No. 4:99-cr-00001-JRH-CLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRELL GAULDEN,
Defendant-Appellant.
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No. 19-12927
Non-Argument Calendar
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D.C. Docket No. 4:99-cr-00001-JRH-CLR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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DERRELL GAULDEN,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Georgia
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(December 23, 2020)
Before WILSON, ROSENBAUM, and EDMONDSON, Circuit Judges.
PER CURIAM:
Terrell and Derrell Gaulden (“Defendants”) -- federal prisoners proceeding
through appellate counsel -- appeal the district court’s denial of their pro se
motions for a sentence reduction under the First Step Act of 2018. 1 No reversible
error has been shown; we affirm.
In 1999, a federal grand jury charged brothers Terrell and Derrell with
several offenses related to Defendants’ drug-distribution organization. These
offenses included distribution of crack cocaine, possession with intent to distribute
1
First Step Act of 2018, Pub. L. No. 115-391, § 404(b),
132 Stat. 5194, 5222.
2
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cocaine hydrochloride, firearm offenses, and soliciting a drive-by shooting in
furtherance of a drug-trafficking offense.
Pertinent to this appeal, Terrell was charged with five counts of distributing
five or more grams of crack cocaine, in violation of
18 U.S.C. § 841(a)(1). The
superseding indictment charged Terrell with distributing these drug quantities: 18.8
grams (Count 3), 25 grams (Count 4), 26.8 grams (Count 6), 5.1 grams (Count 8),
and 32.2 grams (Count 10). The jury found Terrell guilty on all counts but made
no specific drug-quantity findings.
The Presentence Investigation Report (“PSI”) attributed to Terrell the same
drug quantities listed in the superseding indictment, except that the PSI held Terrell
responsible for 30.2 grams for Count 10. The PSI calculated Terrell’s guidelines
range as 292 to 365 months’ imprisonment. The district court sentenced Terrell to
365 months for each of Counts 3, 4, 6, 8, and 10 -- to run concurrently. The
district court also imposed a 60-month consecutive sentence for carrying a firearm
during and in relation to a drug-trafficking offense.
Derrell was charged with 2 counts of distributing 5 or more grams of crack
cocaine: Counts 4 (25 grams) and 10 (32.2 grams). The jury found Derrell guilty
of the charged offenses and made no specific drug-quantity findings. The PSI
attributed to Derrell 25 grams of crack cocaine for Count 4 and 30.2 grams for
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Count 10. The PSI calculated Derrell’s guidelines range as 262 to 327 months’
imprisonment. The district court sentenced Derrell to 327-month concurrent
sentences for Counts 4 and 10, plus a 60-month consecutive sentence for carrying a
firearm during and in relation to a drug-trafficking offense.
In 2019, Terrell and Derrell each moved pro se for a reduced sentence under
the First Step Act. The district court denied both motions in July 2019.2
After the district court denied Defendants relief under the First Step Act --
and while this appeal was pending -- we issued our decision in United States v.
Jones,
962 F.3d 1290 (11th Cir. 2020), in which we addressed the meaning and
proper application of section 404 of the First Step Act.
We review de novo whether a district court had the authority to modify a
term of imprisonment under the First Step Act. Jones, 962 F.3d at 1296. “We
review for abuse of discretion the denial of an eligible movant’s request for a
reduced sentence under the First Step Act.” Id.
The First Step Act “permits district courts to apply retroactively the reduced
statutory penalties for crack-cocaine offenses in the Fair Sentencing Act of 2010 to
movants sentenced before those penalties became effective.” Id. at 1293. 3 Under
2
The district court issued two nearly identical orders denying Terrell and Derrell relief. In an
earlier order, we granted Defendants’ motion to consolidate their appeals.
3
Fair Sentencing Act of 2010, Pub. L. No. 111-220, §§ 2-3,
124 Stat. 2374, 2372.
4
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section 404(b) of the First Step Act, “a district 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.” Id.
at 1297 (quotations and alterations omitted).
To be eligible for a reduction under section 404(b), a movant must have
been sentenced for a “covered offense” as defined in section 404(a). Id. at 1298.
We have said that a movant has committed a “covered offense” if the movant’s
offense triggered the higher statutory penalties for crack-cocaine offenses in
21
U.S.C. § 841(b)(1)(A)(iii) or (B)(iii): penalties that were later modified by the Fair
Sentencing Act. See
id.
In determining whether a movant has a “covered offense” under the First
Step Act, the district court “must consult the record, including the movant’s
charging document, the jury verdict or guilty plea, the sentencing record, and the
final judgment.” Id. at 1300-01. The pertinent question is whether the movant’s
conduct satisfied the drug-quantity element in sections 841(b)(1)(A)(iii) (50 grams
or more of crack cocaine) or 841(b)(1)(B)(iii) (5 grams or more of crack cocaine)
and subjected the movant to the statutory penalties in those subsections. Id. at
1301-02. If so -- and if the offense was committed before 3 August 2010 (the
effective date of the Fair Sentencing Act) -- then the movant’s offense is a
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“covered offense,” and the district court may reduce the movant’s sentence “as if”
the applicable provisions of the Fair Sentencing Act “were in effect at the time the
covered offense was committed.” See First Step Act § 404(b), Jones, 962 F.3d at
1301, 1303. The actual quantity of crack cocaine involved in a movant’s offense
beyond the amount triggering the statutory penalty is not pertinent to determining
whether a movant has a “covered offense.” Jones, 962 F.3d at 1301-02.
Here, Terrell and Derrell were each convicted of offenses involving five or
more grams of crack cocaine: offenses that triggered the higher statutory penalty in
section 841(b)(1)(B)(iii). Defendants’ offenses (committed before 3 August 2010)
thus qualify as “covered offenses” under the First Step Act. Having satisfied the
“covered offense” requirement -- and because a lower statutory penalty would be
available to them under the Fair Sentencing Act -- Terrell and Derrell are each
eligible for a reduced sentence. See Jones, 962 F.3d at 1301-03.
That Defendants are eligible for a reduced sentence under the First Step Act
does not mean, however, that they have a legal right to actual relief. The district
courts retain “wide latitude” to determine whether and to what extent to grant a
sentence reduction. Id. at 1304. In exercising that discretion, district courts may
consider “all the relevant factors,” including the
18 U.S.C. § 3553(a) sentencing
factors.
Id.
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Contrary to Defendants’ assertions on appeal, never did the district court
determine that Defendants were legally disqualified for a reduced sentence.
Instead, the district court determined correctly that Terrell and Derrell were each
convicted of offenses that triggered the higher statutory penalties in section
841(b)(1)(B)(iii). The district court also determined properly -- based on the drug-
quantities attributed to Defendants 4 -- the applicable statutory penalties under
section 2 of the Fair Sentencing Act. According to the district court, the crack-
cocaine convictions for Counts 3, 4, 6, and 8 would now be subject to a lower
statutory penalty (a maximum sentence of 20 years under section 841(b)(1)(C));
and the convictions for Count 10 would remain subject to a statutory penalty
between 5 and 40 years under section 841(b)(1)(B).
The district court also recognized expressly that it had discretion to reduce
Defendants’ sentences under the First Step Act. The court in its discretion
declined to reduce the sentences. The district court summarized the Defendants’
offense conduct, including that Defendants had been involved in a multi-kilogram
drug-distribution operation, had commissioned a drive-by shooting over a drug
debt, and had stored drugs and firearms in a location adjacent to daycare center.
4
The district court was entitled to rely on the earlier drug-quantity findings -- made before the
Supreme Court’s decisions in Apprendi v. New Jersey,
530 U.S. 466 (2000), and in Alleyne v.
United States,
570 U.S. 99 (2013) -- that triggered increased statutory penalties. See Jones, 962
F.3d at 1302.
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The district court noted that -- based on the “magnitude of the drug operation and
the attendant violence and recklessness” exhibited by Defendants -- the district
court had denied three earlier motions for sentence reductions filed by each
Defendant.
Then, in denying Defendants a sentence reduction under the First Step Act,
the district court wrote these words:
The Court has carefully considered each of the sentencing factors in
18 U.S.C. § 3553(a), particularly the nature and circumstances of the
offenses, the need for the sentence imposed to reflect the seriousness
of the offenses and to provide just punishment for such; and the need
for the sentence to protect the public from further crimes of [these]
Defendant[s]. In short, the facts and circumstances as it relates to
these factors have not changed over time (and over three prior denials
from two other district judges) to warrant a different outcome. The
Court hereby exercises its discretion to deny any sentence
modification for th[ese] Defendant[s].1
1
Importantly, Section 404(c) of the First Step Act provides that
“[n]othing in this section shall be construed to require a court to
reduce any sentence pursuant to this section.”
Given the record in this case, we cannot say that the district court abused its
discretion in denying Defendants a reduced sentence after considering the pertinent
section 3553(a) factors. Nor was the district court required to discuss expressly or
to give significant weight to Defendants’ post-sentencing rehabilitation. Cf.
United States v. Croteau,
819 F.3d 1293, 1309 (11th Cir. 2016) (“The weight given
to any specific § 3553(a) factor is committed to the sound discretion of the district
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court.”); United States v. Dorman,
488 F.3d 936, 938 (11th Cir. 2007) (“The
district court need not state on the record that it has explicitly considered each
[section 3553(a)] factor and need not discuss each factor.”).
On appeal, Defendants contend the district court’s orders denying relief are
ambiguous and warrant a remand for further proceedings. We disagree. The
orders are especially clear on the main point: the district judge was not going to
use whatever discretion he had to lower the sentences of these defendants.
In Jones, we vacated and remanded two orders denying relief under the First
Step Act after finding the orders ambiguous about whether the district court
understood that it could reduce the movants’ sentences. 962 F.3d at 1305. Unlike
the circumstances presented in Jones, we are left with no uncertainty about whether
the district court understood that it had authority to reduce Terrell’s and Derrell’s
sentences. Moreover, the district court made clear that it would “exercise its
discretion” to deny the sentence modification requested by Defendants.
For these reasons, we affirm the district court’s denial of Defendants’
motions for relief under the First Step Act.
AFFIRMED.
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