USCA11 Case: 20-10030 Date Filed: 07/09/2021 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10030
Non-Argument Calendar
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D.C. Docket No. 6:09-cr-00035-LGW-CLR-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK REESE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(July 3, 2021)
Before MARTIN, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Proceeding pro se, Derrick Reese appeals the district court’s denial of his
motion to reduce his sentence under the First Step Act of 2018, Pub. L. 115–391,
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132 Stat. 5194. Reese argues that he is eligible for a sentence reduction on the ground
that his offense was subject to the Act’s retroactive sentence-reduction provision.
Upon careful consideration and in light of recent Supreme Court jurisprudence, we
conclude that Reese’s arguments are unsuccessful. Accordingly, we affirm.
I.
In early 2009, Reese sold a total of 6.85 grams of crack cocaine to undercover
law enforcement agents. Reese was arrested shortly afterward and eventually
pleaded guilty to one count of distributing crack cocaine in violation of
21 U.S.C.
§§ 841(a)(1). Under his plea agreement, Reese acknowledged that “the Court is free
to impose any sentence authorized by law up to the statutory maximum sentence of
Imprisonment for not more than 20 years[.]” The district court accepted Reese’s plea
and then sentenced him to imprisonment for 188 months.
In 2019, Reese filed a motion to reduce his sentence under the First Step Act,
which had been enacted the previous year. The district court denied his motion on
the ground that he was ineligible for a reduction under the Act. Reese timely
appealed.
II.
We review de novo “whether a district court had the authority to modify a
term of imprisonment.” United States v. Jones,
962 F.3d 1290, 1296 (11th Cir.
2020). And “[w]e review for abuse of discretion the denial of an eligible movant’s
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request for a reduced sentence under the First Step Act.”
Id. “A district court abuses
its discretion if it applies an incorrect legal standard, applies the law in an
unreasonable or incorrect manner, follows improper procedures in making a
determination, or makes findings of fact that are clearly erroneous.” Norris v. United
States,
820 F.3d 1261, 1265 (11th Cir. 2016) (citation omitted).
III.
Under the pre-2010 version of
21 U.S.C. § 841(b)(1)(A), a violation under
21
U.S.C. § 841(a) carried a mandatory-minimum penalty of 10 years imprisonment if
the offense involved at least 50 grams of crack cocaine. And under the pre-2010
version of the next provision—Section 841(b)(1)(B)—a Section 841(a) violation
carried a mandatory-minimum penalty of 5 years imprisonment if the offense
involved at least 5 grams of crack cocaine. By contrast, the pre-2010 version of
Section 841(b)(1)(C) imposed “a third penalty—possession with intent to distribute
an unspecified amount of a schedule I or II drug—that” had a maximum penalty of
20 years imprisonment, “did not depend on drug quantity, and did not include a
mandatory minimum.” Terry v. United States, 593 U.S. ––, No. 20-5904, slip op. at
2 (June 14, 2021). Crack cocaine is a Schedule II drug. See
21 U.S.C. § 812, Sched.
II(a)(4).
The Fair Sentencing Act of 2010 amended the penalties in Section
841(b)(1)(A) and (B) to apply to offenses involving at least 280 and 28 grams of
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crack cocaine, respectively. Pub. L. 111–220 at § 2,
124 Stat. 2372. The First Step
Act made those amendments retroactive by allowing a court that imposed a sentence
under Section 841 to impose a reduced sentence as if those amendments were in
effect at the time that the offense was committed. See Pub. L. 115–391 at § 404, 132
Stat. at 5222. However, the Supreme Court has recently clarified that “[t]he Fair
Sentencing Act changed nothing in subparagraph (C)” and that penalties imposed
under that subparagraph are consequently unaffected by the First Step Act. Terry,
slip op. at 7–8.
On appeal, Reese argues that his sentence under Section 841(b)(1) qualified
for a reduction under the First Step Act. “To determine the offense for which the
district court imposed a sentence, district courts must consult the record, including
the movant’s charging document, the jury verdict or guilty plea, the sentencing
record, and the final judgment.” Jones, 962 F.3d at 1300–01. From those sources,
“the district court must determine whether the movant’s offense triggered the higher
penalties” found in Section 841(b)(1)(A) or (B). Id. at 1301. We have also rejected
the argument that a district court must make this determination “by considering the
specific quantity of crack cocaine involved in the movant’s violation.” Id.
Here, the records show that the district court sentenced Reese under
subparagraph (C), not subparagraphs (A) or (B). Although it was at some point
ascertained that Reese had sold 6.85 grams of crack cocaine, his indictment made no
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mention of that—or any—quantity of the drug. Moreover, Reese’s presentence
investigation report stated that “[t]he maximum term of imprisonment is twenty
years” and described the statutory provisions of his supervised release as being
“pursuant to
21 U.S.C. § 841(b)(1)(C).” Finally, Reese’s plea agreement expressly
described “the statutory maximum sentence of Imprisonment” as being “not more
than 20 years.” Those details are consistent with or required by subparagraph (C)
but inconsistent with subparagraphs (A) and (B). Accordingly, we conclude that
Reese was sentenced under Section 841(b)(1)(C) and was therefore not eligible for
a sentence reduction under the First Step Act.
IV.
For the reasons stated above, we AFFIRM the district court’s denial of
Reese’s motion to reduce his sentence.
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