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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10305
Non-Argument Calendar
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D.C. Docket No. 1:98-cr-00044-TFM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES BAKER, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(July 19, 2021)
Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Charles Baker appeals his 60-month sentence imposed on the revocation of
his term of supervised release. He raises two arguments on appeal. First, he
argues that the district court erred in suggesting that it lacked authority to consider
that his felony was no longer a Class A felony under the First Step Act of 2018,
Pub. L. No. 115-391, § 404(b),
132 Stat. 5194, 5222 (“First Step Act”), when
imposing its revocation sentence. Second, he argues that, because of the First Step
Act’s changes, his sentence was procedurally unreasonable.
I.
We ordinarily review a district court’s revocation of supervised release for
an abuse of discretion. United States v. Vandergrift,
754 F.3d 1303, 1307 (11th
Cir. 2014). However, where a defendant fails to raise an issue below, we review
for plain error.
Id. To show plain error, the defendant must demonstrate that: (1)
an error occurred; (2) the error was plain; and (3) the error affected his substantial
rights.
Id. If all three conditions are met, we may, in our discretion, correct an
error if it “seriously affected the fairness, integrity, or public reputation of the
judicial proceedings.”
Id. (brackets and quotations omitted).
District courts lack the inherent authority to modify a term of imprisonment
but may do so to the extent that a statute expressly permits.
18 U.S.C.
§ 3582(c)(1)(B); see United States v. Jones,
962 F.3d 1290, 1297 (11th Cir. 2020).
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The First Step Act expressly permits district courts to reduce a previously imposed
term of imprisonment. Jones, 962 F.3d at 1297.
The Fair Sentencing Act, enacted on August 3, 2010, amended
21 U.S.C.
§§ 841(b)(1) and 960(b) to reduce the sentencing disparity between crack and
powder cocaine offenses. Fair Sentencing Act; see Dorsey v. United States,
567 U.S. 260, 268-69 (2012) (detailing the history that led to enactment of the Fair
Sentencing Act, including the Sentencing Commission’s criticisms that the
disparity between crack and powder cocaine offenses was disproportional and
reflected race-based differences). Section 2 of the Fair Sentencing Act changed the
quantity of crack necessary to trigger a 10-year mandatory minimum from 50
grams to 280 grams and the quantity necessary to trigger a 5-year mandatory
minimum from 5 grams to 28 grams. Fair Sentencing Act § 2(a)(1)-(2); see also
21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). These amendments were not made
retroactive to defendants who were sentenced before the enactment of the Fair
Sentencing Act. United States v. Berry,
701 F.3d 374, 377 (11th Cir. 2012). The
Fair Sentencing Act did not expressly make any changes to § 841(b)(1)(C), which
provides for a term of imprisonment of not more than 20 years for cases involving
quantities of crack that do not fall within § 841(b)(1)(A) or (B), i.e., quantities
below 28 grams. See Fair Sentencing Act § 2(a);
21 U.S.C. § 841(b)(1)(C).
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In 2018, Congress enacted the First Step Act, which made retroactive the
statutory penalties for covered offenses provided under the Fair Sentencing Act.
See First Step Act § 404. Under § 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 August 3, 2010.” Id. § 404(a). The First Step Act further
provides that “[n]othing in this section shall be construed to require a court to
reduce any sentence pursuant to this section.” Id. § 404(c).
A district court may revoke a defendant’s supervised release and require him
to serve all or part of his term in prison if it “finds by a preponderance of the
evidence that the defendant violated a condition of supervised release.”
18 U.S.C.
§ 3583(e)(3); see also United States v. Sweeting,
437 F.3d 1105, 1107 (11th Cir.
2006). Revocation of supervised release is not punishment for a defendant’s new
offenses that violate the conditions of his supervised release. Johnson v. United
States,
529 U.S. 694, 699-701 (2000). Rather, post-revocation penalties are
“treat[ed] . . . as part of the penalty for the initial offense.”
Id. at 700.
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A Class A felony has a statutory maximum penalty of life in prison, while a
Class C felony has a maximum of 25-years, but no less than 10-years’
imprisonment.
18 U.S.C. § 3559(a)(1). The maximum term of imprisonment that
a court may impose upon revocation of supervised release is five years for a Class
A felony and no more than two years for a Class C felony.
Id. § 3583(e)(3).
II.
We turn to Baker’s first argument – i.e., that the district court erred when it
failed to consider reducing his original sentence pursuant to the First Step Act such
that his underlying felony conviction would be considered a Class C felony with a
maximum sentence of 24 months rather than a Class A felony with a maximum
sentence of 60 months. We hold that Baker did not fairly raise this issue below, so
we review for plain error. Although Baker argues that his statements during his
allocution alerted the district court to the issue, we do not agree. During his
allocution, Baker cited his earlier successful motion to reduce his sentence but
decried the court’s failure to award him a more substantial “two-point reduction.”
He asserted that he sought this reduction in a motion he filed by mail in 2015, that
the district court apparently never received. Because the First Step Act was passed
in 2018, Baker clearly did not reference it in that 2015 motion. Although Baker’s
allocution to the court was arguing for leniency, including his feeling that his
original sentence was unfair in light of Congress’ reduction of sentencing for crack
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cocaine (implicitly referencing the Fair Sentencing Act), he never mentioned the
First Step Act and never moved for First Step Act relief. The court’s vague
statement about a First Step Act motion being a separate matter cannot create his
argument when he never mentioned it himself. Sealing the fact that First Step Act
relief was not being argued, Baker’s attorney never mentioned the First Step Act,
never moved for First Step Act relief, and made statements and sought a sentence
inconsistent with any First Step Act argument. The attorney conceded that the
maximum statutory sentence was 60 months, which was inconsistent with First
Step Act relief that would mean the underlying felony conviction would have been
a Class C felony with a 24-month maximum statutory sentence. Similarly, the
attorney’s explicit request for a sentence between 24 and 30 months was
inconsistent with the First Step Act argument which would have resulted in the 24-
month statutory maximum.
Baker cannot show plain error. We have stated that “where the explicit
language of a statute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court or this Court
directly resolving it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th
Cir. 2003). Section 404 of the First Step Act permits a defendant to file a motion
to seek a two-point reduction. The district court’s statement that Baker’s putative
First Step Act motion was a separate matter from his revocation proceeding was
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thus not plain error because there is nothing in the statute or binding case law that
indicates it would be properly brought in such a proceeding, and certainly nothing
indicating that the district court must sua sponte consider such relief in such a
proceeding. Thus, because the statute did not explicitly resolve the issue and there
is no precedent from the Supreme Court or this Court resolving it, the district court
did not plainly err. Moreover, Baker has not established that his substantial rights
have been affected; he has not established that the district court would have been
inclined to exercise its discretion to reduce his sentence under the First Step Act if
Baker had fairly raised the issue.
III.
We review the procedural reasonableness of a sentence for abuse of
discretion. United States v. Barrington,
648 F.3d 1178, 1194 (11th Cir. 2011). We,
generally, ensure that a sentence was procedurally reasonable by reviewing
whether the district court miscalculated the Guideline range, treated the Sentencing
Guidelines as mandatory, failed to consider the § 3553(a) factors, based the
sentence on clearly erroneous facts, or failed to adequately explain the sentence.
United States v. Trailer,
827 F.3d 933, 936 (11th Cir. 2016). The district court
may impose any sentence within the statutory maximum, and a sentence in excess
of the chapter seven range is permitted so long as it is within the range imposed by
Congress. United States v. Hofierka,
83 F.3d 357, 362-63 (11th Cir. 1996).
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Baker’s argument regarding the procedural reasonableness of his sentence
centers on the district court’s failure to reclassify his underlying conviction under
the First Step Act. Because we hold that was not plain error, his argument fails.
AFFIRMED.
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