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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13938
Non-Argument Calendar
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D.C. Docket No. 6:06-cr-00032-JA-DCI-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEALLY CUNNINGHAM,
a.k.a. Neally Cunningham, Jr.,
a.k.a. Nealey Cunningham, III,
a.k.a. Nealy Cunningham, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 24, 2020)
Before NEWSOM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
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Neally Cunningham appeals the district court’s denial of his motion for a
reduced sentence under section 404 of the First Step Act of 2018, Pub. L. No. 115-
391,
132 Stat. 5194, 5222, § 404. He contends that the district court erred by
concluding he was ineligible for First Step Act relief. We affirm.
In 2006, following a jury trial, Cunningham was convicted of two counts of
possessing crack cocaine with the intent to distribute it, in violation of 21 U.S.C.
sections 841(a)(1) and (b)(1)(C). The jury found that Cunningham possessed less
than five grams of crack cocaine, and the district court sentenced him as a career
offender to 262 months’ imprisonment.
In 2019, Cunningham moved for a reduction of his sentence under section 404
of the First Step Act. Cunningham argued that his convictions under section
841(b)(1)(C) were “covered offense[s]” under section 404 “because [section] 2 of
the Fair Sentencing Act changed the weight of [crack cocaine] that was penalized by
a statutory range of 0 to 20 years, from less than 5 grams to less than 28 grams.”
The district court denied Cunningham’s motion, concluding that he was not eligible
for relief under the First Step Act because his convictions were not “covered
offense[s]” as defined by the Act. This is Cunningham’s appeal.
“A district court lacks the inherent authority to modify a term of
imprisonment. But it may do so . . . to the extent that a statute expressly permits.
And the First Step Act expressly permits district courts to reduce a previously
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imposed term of imprisonment.” United States v. Jones,
962 F.3d 1290, 1297 (11th
Cir. 2020) (citations omitted). 1
In 2010, Congress enacted the Fair Sentencing Act, which reduced the
sentencing disparity between crack-cocaine and powder-cocaine offenses. Fair
Sentencing Act of 2010, Pub. L. No. 111-220, § 2,
124 Stat. 2372, 2372; see also
Dorsey v. United States,
567 U.S. 260, 268–69 (2012). Section two of the Fair
Sentencing Act modified sections 841(b)(1)(A)(iii) and (B)(iii) by “increas[ing] the
drug amounts [necessary to trigger] mandatory minimums for crack trafficking
offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50
grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500
grams and 5,000 grams respectively).” Dorsey,
567 U.S. at 269. These amendments
were not made retroactive to defendants who were sentenced prior to enactment of
the Fair Sentencing Act. United States v. Berry,
701 F.3d 374, 377 (11th Cir. 2012).
And the Fair Sentencing Act did not modify the statutory penalties for section
841(b)(1)(C), which both before and after the Act provided for a term of
imprisonment of not more than twenty years (thirty years with a prior felony drug
offense) for cases involving crack cocaine that did not fall within sections
841(b)(1)(A) or (B). See Fair Sentencing Act § 2(a);
21 U.S.C. § 841(b)(1)(C).
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“We review de novo . . . whether a district court had the authority to modify a term of
imprisonment.” Jones, 962 F.3d at 1296 (citation omitted).
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In 2018, Congress enacted the First Step Act, which made retroactive the
statutory penalties for covered offenses under the Fair Sentencing Act. See First
Step Act § 404. Under section 404(b) of the First Step Act, “[a] 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. § 404(b). The statute defines “covered offense” 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 [the
enactment of the Fair Sentencing Act].” Id. § 404(a).
In Jones, we recently held that a crack-cocaine conviction is a “covered
offense” if it “triggered the higher penalties in section 841(b)(1)(A)(iii) or (B)(iii).”
962 F.3d at 1301. We explained,
A [defendant]’s offense is a covered offense if section two or three of
the Fair Sentencing Act modified its statutory penalties. Section two of
the Fair Sentencing Act . . . 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). It did so by
increasing the quantity of crack cocaine necessary to trigger those
penalty provisions. See Fair Sentencing Act § 2(a).
Id. at 1298.
Here, Cunningham was convicted under section 841(b)(1)(C), which is not a
covered offense as defined in the First Step Act. Section two of the Fair Sentencing
Act modified the statutory penalties for sections 841(b)(1)(A)(iii) and (b)(1)(B)(iii),
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but not for section (b)(1)(C). While the increase in drug quantity in section
841(b)(1)(B)(iii) did, in turn, increase the drug quantity for section 841(b)(1)(C)
from five grams to twenty-eight grams, that change did not affect the statutory
penalties of those, like Cunningham, who were originally sentenced under section
841(b)(1)(C). Cunningham’s statutory minimum and maximum sentence––zero to
thirty-year imprisonment––were the same before and after the passage of the Fair
Sentencing Act. The district court did not err in denying Cunningham’s motion for
First Step Act relief.
AFFIRMED.
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