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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13216
Non-Argument Calendar
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D.C. Docket No. 1:97-cr-00025-DHB-BKE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY MARCUS CURRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(August 12, 2020)
Before GRANT, LUCK, and FAY, Circuit Judges.
PER CURIAM:
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Ricky Curry appeals the district court’s order denying his request for a
sentence reduction under the First Step Act of 2018, Pub. L. No. 115-391, § 404,
132 Stat. 5194, 5222. He argues that the district court erred in determining that he
is ineligible for a sentence reduction because the First Step Act did not change the
applicable Sentencing Guidelines range. For the reasons outlined below, we vacate
and remand for further proceedings in the district court.
I.
In 1998, a jury found Curry guilty of conspiracy to possess with intent to
distribute and to distribute crack cocaine and cocaine hydrochloride, in violation of
21 U.S.C. § 846 and 18 U.S.C. § 2 (Count 1); and possession with intent to
distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (Count 2). At sentencing, the district court found by a preponderance of
the evidence that Curry’s conspiracy offense involved 21.5 kilograms of crack
cocaine and beyond a reasonable doubt that his conduct involved 3 or 4 kilograms
of crack cocaine. Because Curry had a prior conviction for a felony drug offense,
his statutory sentencing range was 20 years to life for Count 1 and 10 years to life
for Count 2.1 See 21 U.S.C. §§ 841(b)(1)(A) & (b)(1)(B) (1994). Curry’s
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Curry’s statutory penalties were based on the district court’s drug-quantity findings because
Curry was convicted and sentenced before the Supreme Court decided Apprendi v. New Jersey,
which made clear that a drug quantity that increases a defendant’s statutory penalty range must
be found by a jury beyond a reasonable doubt.
530 U.S. 466, 490 (2000).
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Sentencing Guidelines range, based on a total offense level of 44 and a criminal
history category of VI, was life in prison. The district court imposed a life
sentence, to be followed by ten years of supervised release. We affirmed his
convictions and sentence on appeal. United States v. Curry,
31 Fed. Appx. 928
(11th Cir. 2002) (Table).
After pursuing other post-conviction relief, Curry filed a motion in 2014 for
a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 782 of the
Sentencing Guidelines. The district court granted the motion, concluding that
Amendment 782 effectively lowered Curry’s Guidelines range to 360 months to
life in prison, and reduced Curry’s sentence of imprisonment to 360 months.
In 2019, Curry filed a motion requesting a sentence reduction under § 404 of
the First Step Act. He argued that he was eligible for First Step Act relief and that
under Apprendi v. New Jersey,
530 U.S. 466 (2000), his new statutory sentencing
range should not be subject to enhancement based on the quantity of crack cocaine
calculated at his initial sentencing because no specific drug quantity was charged
in his indictment or found by the jury. He further argued that the district court
could exercise its discretion to reduce his sentence below his Guidelines range, and
that a substantial sentence reduction was warranted in light of his post-sentencing
rehabilitation and other factors. In subsequent filings, Curry argued that the statute
of conviction, rather than his offense conduct, should determine his eligibility for
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relief. The government responded that Curry was not eligible for a sentence
reduction because of the quantity of crack cocaine involved in his offense, which
was not subject to relitigation in the context of a First Step Act motion. The
government also pointed out that Curry’s 360-month sentence was within his
current Guidelines range and within the revised statutory range that Curry
advocated.
Characterizing Curry’s motion as a request “for a reduction in the term of
imprisonment imposed based on a guideline sentencing range that has
subsequently been lowered and made retroactive by the First Step Act of 2018,”
the district court denied Curry’s motion and related submissions. Under the
heading “Factors Considered Under USSG § 1B1.10 and 18 U.S.C. § 3533(a),” the
court stated that “[u]pon consideration of the facts and circumstances of the
Defendant’s case, as well as all relevant sentencing factors of 18 U.S.C. § 3553(a),
the Court has determined that a reduction of the Defendant’s current term of
imprisonment pursuant to the First Step Act of 2018 is not appropriate.” The court
explained that it had considered the quantity of drugs for which Curry was held
accountable at sentencing and his previous sentence reduction to 360 months’
imprisonment. The court stated that the First Step Act did not reduce Curry’s total
offense level under the Sentencing Guidelines, and that Curry’s statutory penalties
were unchanged because he distributed more than 21 kilograms of crack cocaine
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and had a prior conviction for a felony drug offense. The court also explained that
it had taken “into account the policy statement set forth at USSG § 1B1.10 and the
sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are
applicable.” Curry now appeals.
II.
We review a district court’s determination regarding a prisoner’s eligibility
for a sentence reduction under the First Step Act de novo. United States v. Jones,
962 F.3d 1290, 1296 (11th Cir. 2020). We review the district court’s denial of an
eligible movant’s request for First Step Act relief for an abuse of discretion.
Id.
“A district court abuses its discretion ‘when it applies an incorrect legal standard.’”
Id. at 1304 (citation omitted).
III.
Section 404(b) of the First Step Act permits district courts to apply certain
provisions of the Fair Sentencing Act of 2010 retroactively to prisoners who were
sentenced before the Fair Sentencing Act became effective. First Step Act
§ 404(b); see
Jones, 962 F.3d at 1297. To be eligible for a reduction under
§ 404(b), the defendant must have been sentenced for a “covered offense,” which
is defined 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.”
Id. § 404(a). Section 2 of the Fair Sentencing
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Act, the section applicable here, “modified the statutory penalties for crack-cocaine
offenses that have as an element the quantity of crack cocaine provided in
subsections 841(b)(1)(A)(iii) and (B)(iii).”
Jones, 962 F.3d at 1298.
In determining whether a movant is eligible for a sentence reduction under
the First Step Act, therefore, 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, to determine whether the movant’s offense
triggered the penalties in § 841(b)(1)(A)(iii) or (B)(iii).
Id. at 1300–01. The
relevant question is whether the movant’s conduct satisfied the drug-quantity
element in §§ 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 penalties in those subsections.
Id. at 1301–02. If so, and if the offense was
committed before August 3, 2010 (the effective date of the Fair Sentencing Act)
then the movant’s offense is a “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.” First Step Act
§ 404(b);
Jones, 962 F.3d at 1301, 1303.
But just because a district court is authorized to reduce a movant’s sentence
does not mean that it is required to do so. The First Step Act states that “[n]othing
in this section shall be construed to require a court to reduce any sentence pursuant
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to this section.” First Step Act § 404(c). District courts retain “wide latitude” to
determine whether and to what extent to grant a sentence reduction.
Jones, 962
F.3d at 1304. In exercising their discretion in this regard, district courts may
consider “all the relevant factors,” including the § 3553(a) sentencing factors.
Id.
Where the record is ambiguous as to whether the district court understood its
authority to reduce a sentence under the First Step Act, we will vacate the order
and remand for further proceedings. See
id. at 1305. Here, the district court’s
order is ambiguous as to whether it understood the scope of its authority under the
First Step Act. The court’s references to § 1B1.10 of the Sentencing Guidelines—
which limits a court’s authority to reduce a defendant’s sentence based on an
amendment to the Guidelines—indicate that the court may have believed that it
lacked the authority to reduce Curry’s sentence below his Guidelines range. See
U.S.S.G. § 1B1.10(b)(2)(A). But the limitation in § 1B1.10(b) does not apply to
motions under the First Step Act; district courts have the authority under § 404(b)
to reduce an eligible movant’s sentence below his revised Guidelines range. See
Jones, 962 F.3d at 1305.
Because we cannot tell whether the district court correctly understood the
scope of its power under § 404(b), we vacate the order denying Curry’s First Step
Act motion and remand for further proceedings consistent with this opinion and
with our opinion in Jones.
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VACATED and REMANDED.
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