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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12222
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEWAYNE JOSEPH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:10-cr-20511-JAL-1
____________________
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2 Opinion of the Court 21-12222
Before JORDAN, JILL PRYOR, and NEWSOM, Circuit Judges
PER CURIAM:
Dewayne Joseph appeals the district court’s denial of his mo-
tion for a sentence reduction under § 404 of the First Step Act, Pub.
L. No. 115-391,
132 Stat. 5194, 5222. Although Joseph was eligible
for a sentence reduction, the district court declined to exercise its
discretion to reduce his sentence. Because we discern no abuse of
discretion in the district court’s decision, we affirm.
I.
In July 2010, a federal grand jury charged Joseph with pos-
session of a firearm as a convicted felon, in violation of
18 U.S.C.
§ 922(g)(1) (Count One); possession with intent to distribute five
grams or more of crack cocaine, in violation of
21 U.S.C.
§ 841(a)(1), (b)(1)(B)(iii) (Count Two); and using and carrying a fire-
arm during and in relation to, and possessing a firearm in further-
ance of, a drug trafficking crime, in violation of
18 U.S.C.
§ 924(c)(1)(A) (Count Three). Before trial, the government notified
Joseph that it intended to seek an enhanced penalty on Count Two
because he had two prior convictions for felony drug offenses. At
the time of the offense, the statutory penalty range for an offense
involving five grams or more of crack cocaine where the defendant
had at least one prior conviction for a felony drug offense was 10
years to life. See
21 U.S.C. § 841(b)(1)(B) (2010).
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21-12222 Opinion of the Court 3
Joseph proceeded to trial. At trial, the government intro-
duced evidence showing that while patrolling a neighborhood in
Miami, police officers encountered Joseph who was riding a bicy-
cle. The officers tried to stop Joseph, but he rode away from them.
The officers pursued Joseph who ignored their commands to stop,
ditched his bike, and tried to flee on foot. While running, Joseph
dropped items, which turned out to be a semiautomatic pistol and
a plastic bag with a substance inside. At trial, Joseph stipulated that
the plastic bag held 30.3 grams of a crack cocaine. The jury re-
turned a verdict finding Joseph guilty on all three counts. For
Count Two, the jury found that the offense involved five grams or
more of crack cocaine.
At sentencing, the district court found that that Joseph qual-
ified as a career offender because had at least two prior felony con-
victions for possessing cocaine with intent to sell or deliver. See
U.S.S.G. § 4B1.1. Applying the career offender guideline, the dis-
trict calculated Joseph’s guidelines range as 292 to 365 months’ im-
prisonment. After considering the § 3553(a) sentencing factors, 1 the
1 Under § 3553(a), a district court is required to impose a sentence “sufficient,
but not greater than necessary, to comply with the purposes” of the statute.
18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness
of the offense; promote respect for the law; provide just punishment; deter
criminal conduct; protect the public from the defendant’s future criminal con-
duct; and effectively provide the defendant with educational or vocational
training, medical care, or other correctional treatment.
Id. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, the kinds of sentences available, the
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4 Opinion of the Court 21-12222
court imposed a total sentence of 352 months’ imprisonment. This
sentence consisted of 120 months on Count One 2 and 292 months
on Count Two, to run concurrently, followed by a mandatory con-
secutive sentence of 60 months on Count Three. See
18 U.S.C.
§ 924(c)(1)(A)(i). Joseph appealed his conviction and sentence, and
we affirmed. See United States v. Joseph (“Joseph I”), 445 F. App’x
301 (11th Cir. 2011) (unpublished).
After Joseph committed the offense, Congress passed the
Fair Sentencing Act to address disparities in sentences between of-
fenses involving crack cocaine and those involving powder co-
caine. See Pub. L. No. 111-220,
124 Stat. 2372 (2010); see also Kim-
brough v. United States,
552 U.S. 85, 97–100 (2007) (providing back-
ground on disparity). The Fair Sentencing Act increased the quan-
tity of crack cocaine necessary to trigger the highest statutory pen-
alties from 50 grams to 280 grams and the intermediate statutory
penalties from five grams to 28 grams. See Fair Sentencing Act § 2;
21 U.S.C § 841(b)(1)(A)(iii), (B)(iii).
Later, Congress passed the First Step Act of 2018, Pub. L.
No. 115-391,
132 Stat. 5194 (2018). Among other things, the First
Step Act gives district courts the discretion “to apply retroactively
applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the
need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
2 The statutory maximum term of imprisonment for Count One was 10 years.
See
18 U.S.C. § 924(a)(2).
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21-12222 Opinion of the Court 5
the reduced statutory penalties for crack-cocaine offenses in the
Fair Sentencing Act of 2010 to movants sentenced before those
penalties became effective.” United States v. Jones,
962 F.3d 1290,
1293 (11th Cir. 2020). But a movant is ineligible for a sentence re-
duction if his sentence “was previously imposed . . . in accordance
with . . . the Fair Sentencing Act.” First Step Act § 404(c).
After the First Step Act went into effect, Joseph moved for a
sentence reduction. The district court initially found that Joseph
was ineligible for a sentence reduction because his original sen-
tence had been imposed after the Fair Sentencing Act went into
effect. On appeal, we concluded that Joseph was eligible for a sen-
tence reduction because the district court had sentenced Joseph un-
der the pre-Fair Sentencing Act statutory scheme. See United States
v. Joseph (“Joseph II”), 842 F. App’x 471 (11th Cir. 2021). We va-
cated the district court’s order and remanded the case so that the
district court could decide whether to exercise its discretion to
award Joseph a sentence reduction. Id. at 477.
On remand, Joseph urged the district court to exercise its
discretion to reduce his sentence. He argued that a sentence reduc-
tion was warranted based on what his guidelines range would have
been for Count Two if he had been sentenced under the Fair Sen-
tencing Act. According to Joseph, using the drug quantity found by
the jury (five grams of crack cocaine), his statutory maximum stat-
utory penalty under the Fair Sentencing Act would have been 30
years, not life. See
21 U.S.C. § 841(b)(1)(C) (2011) (setting 30-year
statutory maximum for an offense involving less than 28 grams of
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6 Opinion of the Court 21-12222
crack cocaine when the defendant had at least one prior conviction
for a felony drug offense). This change in the statutory maximum
penalty, he argued, reduced his offense level under the career of-
fender guideline and yielded a guidelines range of 210 to 262
months’ imprisonment on Count 2. See U.S.S.G. § 4B1.1.
Joseph asked the court to exercise its discretion under the
First Step Act to reduce his sentence, claiming that he had been
rehabilitated in prison. Joseph introduced evidence showing that
he had completed a number of educational programs while in
prison and received positive work performance reviews from his
prison employer. Joseph acknowledged that he had sustained 11
disciplinary infractions while in prison but pointed out that most of
the infractions were several years old.
The government opposed Joseph’s motion, arguing that the
district court should decline to exercise its discretion. The govern-
ment began by addressing whether Joseph would have faced a
lower statutory penalty and guidelines range if he had been sen-
tenced under the Fair Sentencing Act. The government argued that
because Joseph stipulated at trial that the drug weight was 30.3
grams of crack cocaine, this drug quantity should be used to calcu-
late his statutory penalty. With this drug quantity, the government
said, Joseph’s statutory penalty range under the Fair Sentencing Act
would have remained 10 years to life and his guidelines range for
Count Two would have stayed at 292 to 362 months’ imprison-
ment.
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21-12222 Opinion of the Court 7
In addition, the government argued that the § 3553(a) factors
did not justify a sentence reduction. The government argued that
Joseph’s original sentence was reasonable given his personal his-
tory and characteristics, the seriousness of his offense, the need to
provide deterrence, and the need to avoid unwarranted sentencing
disparities.
In a written order, the district court declined to exercise its
discretion and denied Joseph’s motion for a sentence reduction.
The court began by considering Joseph’s argument that because
the jury found that the offense involved five grams of crack co-
caine, he would have been subject to a reduced statutory penalty
and guidelines range if he had been sentenced under the Fair Sen-
tencing Act. The court observed that the parties disagreed about
what drug quantity would have been used to set Joseph’s statutory
penalty range if he had been sentenced under the Fair Sentencing
Act. The court did not resolve the issue. Instead, it explained that
“[r]egardless of whether the relevant quantity of crack cocaine is
five grams or 30.3 grams, after considering the sentencing factors
under
18 U.S.C. § 3553(a),” it would “decline to exercise its discre-
tion to reduce [Joseph’s] sentence.” Doc. 140 at 13. 3
The court then explained why, even if the relevant drug
quantity for purposes of setting Joseph’s statutory penalty range
was five grams of crack cocaine, it would not exercise its discretion
to reduce his sentence. The court discussed the nature and
3 “Doc.” numbers refer to the district court’s docket entries.
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8 Opinion of the Court 21-12222
circumstances of the offense: Joseph fled from law enforcement of-
ficers while carrying a pistol and 30.3 grams of crack cocaine. The
court also pointed to Joseph’s history and characteristics: he had
multiple prior convictions, including two prior convictions for pos-
sessing drugs with intent to sell. In looking at this factor, the court
considered Joseph’s conduct while incarcerated, which included
completing rehabilitating programs, maintaining employment,
and incurring multiple disciplinary infractions. After further con-
sidering the need to reflect the seriousness of the offense, provide
adequate deterrence, and to protect the public from future crimes,
the court concluded that Joseph’s original sentence was appropri-
ate and no reduction was warranted.
Joseph appeals.
II.
We review for abuse of discretion a district court’s denial of
an eligible movant’s request for a sentence reduction under the
First Step Act. United States v. Stevens,
997 F.3d 1307, 1312 (11th
Cir. 2021). A district court abuses its discretion when it applies an
incorrect legal standard or makes a clear error of judgment.
Id.
III.
Although we held in Joseph II that the district court had au-
thority to reduce Joseph’s sentence, we remanded to the district
court so that it could decide in the first instance whether to exercise
its discretion. See 842 F. App’x at 476–77. The district court had
discretion to reduce Joseph’s sentence, but “it was not required to
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21-12222 Opinion of the Court 9
do so” and had “wide latitude” to decide whether to exercise its
discretion. Jones, 962 F.3d at 1304.
When a district court declines to exercise its discretion un-
der the First Step Act, it must adequately explain its sentencing de-
cision to allow for meaningful appellate review by making clear
that it had a reasoned basis for its decision. Stevens, 997 F.3d at
1317. In deciding whether to exercise its discretion, a district court
may, but is not required to, consider the statutory sentencing fac-
tors set forth in
18 U.S.C. § 3553(a). Id. at 1316. 4 Likewise, a district
court may, but is not required to, calculate a movant’s revised
guidelines range under the Fair Sentencing Act. See United States
v. Gonzalez,
9 F.4th 1327 (11th Cir. 2021). Although “[i]n some in-
stances” the “better practice” may be for a district court to calculate
a movant’s new guidelines range, we have concluded there is no
“hard-and-fast rule” that requires a district court to make this cal-
culation.
Id. at 1332–33.
Joseph argues that the district court abused its discretion in
declining to exercise its discretion to reduce his sentence on Count
Two. He argues that the district court erred because it never deter-
mined the relevant drug-quantity amount for purposes of setting
his statutory penalty range and thus never calculated what his
4 Joseph points out that other circuits have held that district courts must con-
sider the § 3553(a) factors when deciding whether to exercise their discretion
to reduce a movant’s sentence under the First Step Act. But he concedes that
binding precedent from this Court holds that a district court is not required to
consider the § 3553(a) factors.
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10 Opinion of the Court 21-12222
statutory penalty or guidelines range would have been for Count
Two under the Fair Sentencing Act.
Joseph is correct that the district court did not definitively
decide the drug-quantity or related statutory penalty and guide-
lines range questions. Still, we cannot say that the district court
erred. Read in context, the district court’s order shows that it pro-
ceeded by assuming that these issues would be decided in Joseph’s
favor. The court explained that even if the relevant drug quantity
was only five grams of crack cocaine, meaning Joseph faced lower
statutory penalty and guidelines ranges, it still would not exercise
its discretion to grant Joseph relief. There is nothing improper
about this approach. See United States v. Tinker,
14 F.4th 1234,
1240 (11th Cir. 2021) (explaining that a district court may “assume
that a condition is satisfied” and then explain why a movant is not
entitled to relief under the First Step Act).
Joseph nevertheless contends that the district court abused
its discretion because, he says, if the drug quantity, statutory pen-
alty range, and guidelines range issues were decided in his favor,
the district court’s decision declining to reduce his sentence was
unreasonable. We disagree. After all, Joseph’s 292-month sentence
for Count Two remained well below 360 months, the statutory
maximum penalty under the Fair Sentencing Act for an offense in-
volving five grams of crack cocaine when the defendant had a prior
conviction for a felony drug offense. See
21 U.S.C. § 841(b)(1)(C)
(2011). That Joseph’s sentence was well below the statutory
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21-12222 Opinion of the Court 11
maximum indicates it was reasonable. See United States v. Gold-
man,
953 F.3d 1213, 1222 (11th Cir. 2020).
In addition, although the district court was not required to
consider the § 3553(a) factors, it carefully considered these factors.
It explained that Joseph’s existing sentence was reasonable given
his conduct involved in the offense, which included fleeing from
law enforcement while carrying crack cocaine and a firearm; his
extensive criminal history, which included prior convictions for
drug distribution offenses; and his history of disciplinary infractions
while incarcerated. We simply cannot say that the district court
abused its considerable discretion when it weighed the § 3553(a)
factors and decided not to award Joseph a sentence reduction. See
Jones, 962 F.3d at 1304.
AFFIRMED.
