USCA11 Case: 20-11039 Date Filed: 10/07/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11039
Non-Argument Calendar
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D.C. Docket No. 9:01-cr-08126-UU-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL TYRONE MCCULLON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 7, 2020)
Before MARTIN, JILL PRYOR, and BRASHER, Circuit Judges.
PER CURIAM:
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Michael McCullon appeals the district court’s denial of his motion to modify
his sentence pursuant to Section 404 of the First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194 (“First Step Act”). Because McCullon is not eligible for
First Step Act relief under United States v. Jones,
962 F.3d 1290 (11th Cir. 2020),
we affirm.
I.
In 2001 McCullon was indicted on a number of charges including
possession with intent to distribute five grams or more of crack cocaine in violation
of 21 U.S.C. § 841. In 2002 a jury convicted him of the lesser-included offense of
simple possession of crack cocaine, finding that he possessed only 0.15 grams.
Under the law in effect at the time, and based on his criminal history, McCullon
was subject to a sentence of 90 days to 3-years imprisonment. See 21 U.S.C.A. §
844(a) (2000). Today, that same sentence applies. See 21 U.S.C. § 844(a).
McCullon was sentenced to 36-months imprisonment to be followed by one
year of supervised release for that offense. This was to be served concurrent to his
262-month sentence for possession of a firearm by a prohibited person under 18
U.S.C. § 922(g). In January 2020 McCullon moved for a modification of his
sentence pursuant to Section 404 of the First Step Act. The district court denied
the motion, finding that even if McCullon were eligible for First Step Act relief, he
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was not entitled to resentencing because of his criminal history and because the
statutory penalties for his offense had not changed. McCullon timely appealed.
II.
We review de novo whether a district court has authority to modify a term of
imprisonment. United States v. Phillips,
597 F.3d 1190, 1194 n.9 (11th Cir. 2010).
McCullon argues the district court has authority to modify his term of
imprisonment pursuant to the First Step Act and abused its discretion in denying
his motion for a modification. McCullon maintains that he is eligible for First Step
Act relief either because the Fair Sentencing Act modified the penalties for the
crime with which he was charged (possession with intent to distribute 5 grams or
more of crack cocaine) or because it modified some of the statutory penalties that
apply to the provision McCullon violated. McCullon concedes that the statutory
penalty he was subject to was not changed by the Fair Sentencing Act.
McCullon’s arguments in support of his eligibility for First Step Act relief
are foreclosed by Jones. In that case, a panel of this Court held that to be eligible
for sentence modification under Section 404 of the First Step Act, a defendant
must have been convicted of an offense that “triggered a statutory penalty that has
since been modified by the Fair Sentencing Act.”
Jones, 962 F.3d at 1298. The
fact that the charged offense would have triggered penalties changed by the Fair
Sentencing Act is irrelevant if the defendant’s ultimate statutory penalty was not
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modified by the Fair Sentencing Act.1 See
id. at 1301. Because McCullon’s
offense triggered a statutory penalty that was not changed by the Fair Sentencing
Act, he is ineligible for First Step Act relief.
AFFIRMED.
1
McCullon also argues that because Jones stated that the district court cannot look to the
actual quantity of crack cocaine involved in the violation, the district court here could not have
considered the fact that McCullon only possessed 0.15 grams. But that statement was made in
the context of Jones’s holding that the only relevant information is whether the amount involved
triggered one of the penalties changed by the Fair Sentencing Act.
Jones, 962 F.3d at 1301.
Because McCullon was found guilty of possessing fewer than 5 grams of crack cocaine, his
offense did not trigger one of those penalties.
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