United States v. Terry Hargers ( 2020 )

Case: 20-10382 Document: 00515584778 Page: 1 Date Filed: 09/30/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10382 September 30, 2020
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Terry Lynn Hargers,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:07-CR-61-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Terry Lynn Hargers appeals the district court’s denial of his motion
under the First Step Act of 2018 to reduce his sentence of 24 months in
prison, imposed upon the revocation of his term of supervised release
following his 2007 guilty-plea conviction of distributing and possessing with
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-10382 Document: 00515584778 Page: 2 Date Filed: 09/30/2020
No. 20-10382
intent to distribute cocaine base. See First Step Act of 2018, Pub. L. No. 115-
391, 132 Stat. 5194; 21 U.S.C. § 841(a)(1) & (b)(1)(C). Hargers contends that
the district court erred in finding him ineligible for relief under the First Step
Act.
The Government, relying on this court’s decision in United States v.
Jackson, 945 F.3d 315, 319 (5th Cir. 2019), cert. denied, 2020 WL 1906710(U.S. Apr. 20, 2020) (No. 19-8036), has filed a motion for summary
affirmance or, in the alternative, an extension of time in which to file a brief.
Hargers, relying on multiple albeit out-of-circuit cases, does not concede that
his issue is foreclosed. We therefore deny the Government’s motion for
summary affirmance. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). However, because Hargers is not entitled to the relief
he seeks, as discussed below, we dispense with further briefing and affirm.
The record establishes that Hargers was convicted of an offense under
§ 841(b)(1)(C), which applies to any quantity of cocaine base without a
triggering minimum amount. The Fair Sentencing Act of 2010 raised the
triggering minimum amounts of cocaine base in § 841(b)(1)(A)(iii) and
(B)(iii) from 50 grams and 5 grams to 280 grams and 28 grams, respectively,
but did not modify § 841(b)(1)(C) which required no minimum quantity of
cocaine base to apply. Fair Sentencing Act of 2010, Pub. L. No. 111-220,
sec. 2(a), 124 Stat. 2372; Jackson, 945 F.3d at 318. Therefore, even if the
First Step Act applies to revocation sentences, Hargers was ineligible for a
sentence reduction because the Fair Sentencing Act did not modify the
penalty for his offense of conviction. See First Step Act of 2018, sec. 404(a),
132 Stat. 5194, 5222; Fair Sentencing Act of 2010, sec. 2(a), 124 Stat. 2372;
Jackson, 945 F.3d at 318.
The Government’s motion for summary affirmance or an extension of
time is DENIED, and the judgment of the district court is AFFIRMED.
See United States v. Chacon, 742 F.3d 219, 220 (5th Cir. 2014).
2