USCA11 Case: 23-10296 Document: 13-1 Date Filed: 06/28/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10296
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK KIRKSEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:05-cr-00033-AW-GRJ-1
____________________
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2 Opinion of the Court 23-10296
Before JORDAN, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Mark Kirksey, proceeding pro se, appeals the district court’s
denial of his motion for reconsideration of the court’s order deny-
ing his motion to reduce his sentence under § 404 of the First Step
Act of 2018,
Pub. L. No. 115-391, 132 Stat. 5194 (“First Step Act”).
We affirmed the district court’s denial of Kirksey’s motion to re-
duce his sentence in a previous appeal. See United States v. Kirksey,
No. 21-10280,
2021 WL 2909733 (11th Cir. July 12, 2021). Now, in
the instant appeal, Kirksey has appealed from the district court’s
denial of his motion for reconsideration of that earlier order, and
the government has responded by moving for summary affir-
mance. After careful review, we grant the government’s motion
for summary affirmance.
Summary disposition is appropriate either where time is of
the essence, like in “situations where important public policy issues
are involved or those where rights delayed are rights denied,” or
where “the position of one of the parties is clearly right as a matter
of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the
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23-10296 Opinion of the Court 3
appeal is frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158,
1162 (5th Cir. 1969). 1
We generally review de novo whether a district court had the
authority to modify a defendant’s term of imprisonment under the
First Step Act. United States v. Jones,
962 F.3d 1290, 1296 (11th Cir.
2020), vacated,
143 S. Ct. 72 (2022), reinstated by United States v. Jack-
son,
58 F.4th 1331 (11th Cir. 2023). But we review the denial of a
motion for reconsideration for abuse of discretion. United States v.
Llewlyn,
879 F.3d 1291, 1294 (11th Cir. 2018). To obtain reversal of
a district court judgment that is based on multiple, independent
grounds, an appellant must show on appeal that every stated
ground for the judgment against him is incorrect. Sapuppo v. All-
state Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014).
The Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124
Stat. 2372 (“Fair Sentencing Act”), enacted on August 3, 2010,
amended
21 U.S.C. § 841(b)(1) to reduce the sentencing disparity
between crack and powder cocaine. Fair Sentencing Act; see Dorsey
v. United States,
567 U.S. 260, 268–69 (2012) (detailing the history
that led to the enactment of the Fair Sentencing Act, including the
Sentencing Commission’s criticisms that the disparity between
crack and powder cocaine offenses was disproportional and re-
flected race-based differences). Specifically, § 2(a)(1) raised the
quantity of crack cocaine necessary to trigger a 10-year mandatory
1 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October
1, 1981.
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minimum sentence from 50 to 280 grams, and § 2(a)(2) raised the
quantity of crack cocaine threshold to trigger a 5-year mandatory
minimum from 5 grams to 28 grams. Fair Sentencing Act § 2(a)(1)–
(2);
21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). The Fair Sentencing Act
did not make any changes to the penalties for powder cocaine of-
fenses. See generally Fair Sentencing Act § 2(a). At that time, the
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).
In 2018, Congress enacted the First Step Act, which made
retroactive for certain “covered offenses” the statutory penalties
enacted under the Fair Sentencing Act. See First Step Act § 404.
Under § 404(b) of the First Step Act, “[a] court that imposed a sen-
tence 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 crimi-
nal statute, the statutory penalties for which were modified by sec-
tion 2 or 3 of the Fair Sentencing Act . . . that was committed be-
fore August 3, 2010.” Id. § 404(a). The First Step Act adds that “[n]o
court shall entertain a motion” under § 404 “if a previous motion
made under this section to reduce the sentence was, after the date
of enactment of this Act, denied after a complete review of the mo-
tion on the merits.” Id. § 404(c).
Section 401 of the First Step Act narrowed the types of drug
convictions that would trigger recidivist penalties under § 841(b)
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23-10296 Opinion of the Court 5
and reduced § 841(b)(1)(A)’s statutory minimum from life impris-
onment to 25 years for defendants with 2 qualifying drug convic-
tions. Id. § 401(a)(1)-(2). The changes from § 401 were not made
retroactive. Id. § 401(c).
In Jones, we considered the appeals of four federal prisoners
whose motions for a reduction of sentence pursuant to Sec-
tion 404(b) were denied in the district courts. See 962 F.3d at
1293. We held that a movant was convicted of a “covered offense”
if he was convicted of a crack-cocaine offense that triggered the
penalties in § 841(b)(1)(A)(iii) or (B)(iii). Id. at 1301. We also ex-
plained that a movant’s satisfaction of the “covered offense” re-
quirement does not necessarily mean that the district court is au-
thorized to reduce his sentence. Id. at 1303. Specifically, we stated
that the “as if” qualifier in Section 404(b) of the First Step Act --
which states that any reduction must be “as if sections 2 and 3 of
the Fair Sentencing Act . . . were in effect at the time the covered
offense was committed” -- imposes a limitation on the district
court’s authority. Id. (quoting First Step Act § 404(b)). The district
court cannot reduce a sentence where the movant received the
lowest statutory penalty that would also be available to him under
the Fair Sentencing Act. Id.
In United States v. Taylor, we reiterated that “‘the First Step
Act does not authorize the district court to conduct a plenary or de
novo resentencing.’”
982 F.3d 1295, 1302 (11th Cir. 2020) (quoting
United States v. Denson,
963 F.3d 1080, 1089 (11th Cir. 2020), abro-
gated on other grounds by Concepcion v. United States,
142 S. Ct. 2389
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6 Opinion of the Court 23-10296
(2022)). The issue before us was “whether a federal drug crime in-
volving both crack cocaine and another controlled substance can
be a ‘covered offense’ as that term is defined in the Act.”
Id. at 1297.
There, Taylor had been convicted of conspiracy to possess with in-
tent to distribute 5 kilograms of powder cocaine and 50 grams of
crack cocaine.
Id. We held that “the First Step Act’s definition of a
covered offense covers a multidrug conspiracy offense that in-
cludes both a crack-cocaine element and another drug-quantity ele-
ment.”
Id. at 1300 (quotations omitted). We further said that “[t]he
authority to reduce [a defendant’s] sentence as if sections 2 and 3
of the Fair Sentencing Act were in effect when [he] committed his
offense does not permit the court to reduce [his] sentence on the
covered offense based on changes in the law beyond those man-
dated by those sections.”
Id. at 1302 (quotations omitted).
The Supreme Court held in Concepcion that sentencing
courts may consider intervening changes of law or fact in adjudi-
cating a First Step Act motion. 142 S. Ct. at 2396. The Supreme
Court stated that while courts must consider these arguments
when raised by the parties, whether to reduce the defendant’s sen-
tence remains within their sound discretion. Id. The Court ex-
plained that sentencing courts have historically had wide latitude
to consider any information relevant to understanding a defend-
ant’s individual circumstances, and “[n]othing in the text and struc-
ture of the First Step Act expressly, or even implicitly, overcomes
the established tradition of district court’s sentencing discretion.”
Id. at 2401. In so holding, the Supreme Court overruled our prior
holding in Denson that a court cannot reduce a defendant’s sentence
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23-10296 Opinion of the Court 7
based on changes in the law beyond those mandated by the Fair
Sentencing Act. Id. at 2398 n.2 (citing Denson, 963 F.3d at 1089).
In October 2022, the Supreme Court granted a petition for a
writ of certiorari filed by one of the four appellants from the consol-
idated appeal in Jones, vacated our judgment, and remanded for fur-
ther consideration in light of Concepcion. Jackson v. United States,
143 S. Ct. 72 (2022). On remand, we concluded that Concepcion did
not abrogate our reasoning in Jones and reinstated our prior deci-
sion in Jones. Jackson, 58 F.4th at 1333. We rejected the argument
that Concepcion abrogated Jones and would allow a defendant like
Jackson to use intervening changes in law like in Apprendi v. New
Jersey,
530 U.S. 466 (2000), to show that they were eligible for a sen-
tence reduction.
Id. at 1335–37. Specifically, we disagreed with
Jackson’s argument that the Supreme Court in Concepcion had re-
jected the premise in Jones that the “as if” language in § 404 imposed
a substantive limit on the information that court could consider
under the First Step Act. Id. at 1335–36. We explained that Jones
concerned how to determine the drug quantity involved in the de-
fendant’s offense and what his corresponding statutory penalties
were for purposes of determining whether he was sentenced for a
“covered offense” under the First Step Act, whereas Concepcion ad-
dressed which factors a district court may consider when deciding
whether to exercise its discretion to reduce a sentence after it had
determined that the defendant was sentenced for a “covered of-
fense.” Id. at 1336–37. We held that Jackson still was not eligible
for relief because he could not rely on the intervening change of
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8 Opinion of the Court 23-10296
law in Apprendi to redefine his offense for purposes of a First Step
Act motion. Id. at 1337–38.
We’ve recently explained that Concepcion abrogated aspects
of Denson regarding whether a court adjudicating a First Step Act
motion could consider changes in law unrelated to those specified
in the Fair Sentencing Act but that Concepcion did not abrogate Den-
son’s holding that a court could not reduce defendants’ sentences
for non-covered offenses. United States v. Files,
63 F.4th 920, 930–
31 (11th Cir. 2023). We also explained that the Supreme Court’s
discussion in Concepcion pertained to the absence of limitations by
Congress on how a district court exercises its discretion in reducing
a defendant’s sentence, not its authority to do so in the first place.
Id. at 931. We confirmed that a district court can consistently apply
“Denson’s holding limiting the categories of sentences that can be
reduced and Concepcion’s holding empowering courts to exercise
broad discretion in imposing reduced sentences for those qualify-
ing offenses.”
Id.
The law-of-the-case doctrine provides that an appellate deci-
sion binds all subsequent proceedings in the same case as to explicit
or implicit fact findings and legal conclusions made in a prior ap-
peal. United States v. Anderson,
772 F.3d 662, 668 (11th Cir. 2014).
An exception to the law-of-the-case doctrine may be warranted if
there is new evidence; an intervening change in controlling law dic-
tates a different result; or the appellate decision, if implemented,
would cause manifest injustice because it is clearly erroneous.
Id.
at 668–69.
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23-10296 Opinion of the Court 9
Here, summary affirmance is warranted because Kirksey
cannot show that the district court erred as to each of the three
independent grounds it relied on in its denial of Kirksey’s motion
for reconsideration. Sappuppo,
739 F.3d at 680. In his previous ap-
peal, we affirmed the district court’s determination that Kirksey
was ineligible for relief under Jones because the “as if” clause in the
First Step Act precluded relief where Kirksey was already serving
the lowest statutory penalty -- life imprisonment -- that would have
been available under the Fair Sentencing Act. See Kirksey,
2021 WL
2909733, at *4; see also Jones, 962 F.3d at 1300–01; Taylor, 982 F.3d
at 1300. Since then, we’ve clarified that Concepcion did not change
this analysis because it only addressed what information the district
court could consider in deciding whether to exercise its discretion
to reduce a sentence, not how the court determines whether a de-
fendant is eligible for relief. Jackson, 58 F.4th at 1333; Files, 63 F.4th
at 930–31. Because Concepcion did not disturb the holding in Denson
that we relied on in Kirksey’s previous appeal -- nor abrogate our
law that we otherwise applied in determining he was ineligible for
a reduction -- an exception to the law-of-the-case doctrine is not
warranted. Anderson,
772 F.3d at 668.
Accordingly, because the government’s position is clearly
correct as a matter of law that there is no substantial question as to
the outcome of the case, we GRANT the government’s motion for
summary affirmance. Groendyke Transp., Inc.,
406 F.2d at 1162.
AFFIRMED.
